A Feud in Wolf-Kink Erotica Raises a Deep Legal Question

From The New York Times:

Addison Cain was living in Kyoto, volunteering at a shrine and studying indigenous Japanese religion. She was supposed to be working on a scholarly book about her research, but started writing intensely erotic Batman fan fiction instead.

It happened almost by accident. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., under a different name — was three years out of college, alone abroad with a lot of time on her hands. Her command of Japanese was halting, and English titles in bookstores were wildly expensive. So Ms. Cain started reading things she could find for free online, and soon discovered fanfic — stories by amateurs that borrow characters and plots from established pop-cultural franchises.

Ms. Cain began devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She decided to write some of her own, featuring Batman’s nemesis Bane as a sexy antihero, and posted them for free online. She quickly developed a fan base, becoming something of a star in her sub-subgenre.

A few years later, she was living in Arlington, Va., and working as a bartender when she began to wonder if she could turn her hobby into a business. Her husband and parents discouraged her from pursuing something so impractical. Agents were equally dismissive, rejecting or ignoring Ms. Cain’s queries for more than a year. Then, a fellow writer helped Ms. Cain send a manuscript to Blushing Books, a small publishing house in Charlottesville. An editor read it overnight and sent her a contract the next day.

In the spring of 2016, she published “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth where most of humanity has died from a plague and survivors live under a dome, divided into a wolfpack-like hierarchy of dominant Alphas, neutral Betas and submissive Omegas. A powerful, brutish Alpha named Shepherd takes an Omega woman named Claire captive, and they engage in rough, wolfish sex.

Ms. Cain’s fans posted nearly 100 positive reviews on Amazon, enough to get her some visibility. “Unapologetically raw and deliciously filthy,” read one glowing blurb. The debut was a hit. She rushed out several more titles, and the series grossed some $370,000, according to her publisher.

For the next two years, Ms. Cain published at breakneck speed, producing a novel every few months by repurposing her older fan fiction, keeping her books in the algorithmic sweet spot of Amazon’s new releases and turning herself into a recognizable brand. “Dip your toes into the erotica pool,” she said on a 2016 sci-fi and fantasy podcast. “There’s nothing to do here but make money.”

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage.

. . . .

Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately. Ms. Cain’s readers flocked to her defense. “This is a rip off of Addison Cain,” one irate reader wrote on Goodreads. “So disappointed in this author and I hope Mrs. Cain seeks legal charges against you for stealing her work! Shame on you!”

It’s hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.

The dispute between Ms. Cain and Ms. Ellis is a kink-laden microcosm of tactics at play throughout the fanfic industry. As the genre commercializes, authors aggressively defend their livelihoods, sometimes using a 1998 law, the Digital Millennium Copyright Act, to get online retailers to remove competitors’ books. When making a claim, a creator must have a “good faith belief” that her ownership of the work in question has been infringed.

But what does that mean when the ultimate source material is a crowdsourced collective? The question has members of the Omegaverse community choosing sides between Ms. Cain and Ms. Ellis — as will a federal judge in Virginia, who is considering whether the allegations, and the consequences, merit a payout of more than a million dollars.

. . . .

While some traditional authors have derided fan fiction writers as creative parasites, there isn’t really any way to stop them. Such works are legal as long as writers post them for free and don’t try to sell stories based on copyrighted material.

But too much money was at stake for the genre to remain amateur forever. E L James’s blockbuster series “Fifty Shades of Grey,” which sold more than 150 million copies, started as fanfic based on Stephenie Meyer’s “Twilight” vampire saga. By swapping out copyrighted characters for nominally original ones — a practice known as “filing off the serial numbers” — fanfic writers like Ms. James, Christina Lauren and the cheekily named Tara Sue Me have leapfrogged into for-profit publishing.

As more fan fiction writers cross over into commercial publishing, turf wars have erupted. “Fan fiction made authors and publishers realize there was a thriving market for this stuff,” said Rebecca Tushnet, a copyright expert at Harvard Law School. “There’s much more of it, so there’s more opportunity for conflict.”

. . . .

The appetite for such tales is large and growing. In the past decade, more than 70,000 stories set in the Omegaverse have been published on the fan fiction site Archive of Our Own. As it became more popular, the Omegaverse transcended individual fandoms and became an established genre on its own.

Writers began publishing Omegaverse stories with original characters and settings, and authors started to publish them for profit. On Amazon, there are hundreds of novels for sale, including titles like “Pregnant Rock Star Omega,” “Wolf Spirit: A Reverse Harem Omegaverse Romance” and “Some Bunny to Love: An M/M MPreg Shifter Romance,” an improbable tale involving an Alpha male who can transform into a rabbit.

This was the thriving commercial backdrop to Ms. Cain’s allegation that Ms. Ellis stole her material. Ms. Ellis thought that the claim was absurd — and was prepared to say so in court.

. . . .

One day last spring, Ms. Ellis met me for coffee at a hotel near Paddington Station. She doesn’t seem like someone who writes dark, edgy, sometimes violent erotica. She’s young, cheerful, and works in education in London, which is one of the reasons she declines to publish under her real name. Most days, she gets up at four in the morning to write, then heads to the school where she works. On her Amazon author page, she describes herself as a “cat mama” who loves “sexual tension that jumps off the page.”

Ms. Ellis said she got into fan fiction in 2006. She read stories set in the Harry Potter universe at first, then moved on to other fandoms, including one for the BBC’s “Sherlock,” starring Benedict Cumberbatch, that introduced her to the Omegaverse. The genre was unlike anything else she’d encountered. She began dabbling in her own original writing, and in late 2017 began working on the “Myth of Omega” series.

. . . .

“You have to make sure you use the tropes of Omegaverse in order to be recognized by fans of the genre,” Ms. Ellis said. “Crave to Conquer” and its sequel, “Crave to Capture,” were published in early 2018 by Quill Ink Books, a London company she founded. Readers gave the series glowing reviews on Goodreads and Amazon, calling it “sensational new Omegaverse!” and the “best Omega yet.”

In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.

“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”

A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.

Ms. Ellis decided to sue. “Everything would have been in question, my integrity would have been questioned, my ability to write and tell stories — all of that would have been under threat if I didn’t challenge these claims,” she said.

In the fall of 2018, Quill Ink filed against Blushing Books and Ms. Cain in federal court in Oklahoma, where Ms. Ellis’s digital distributor is based, seeking $1.25 million in damages for defamation, interfering with Ms. Ellis’s career, and for filing false copyright infringement notices. In the suit, Quill’s lawyers argued that “no one owns the ‘omegaverse’ or the various tropes that define ‘omegaverse.’”

Ms. Ellis’s lawyers thought they had a strong position. But they struggled to find a prior case that addressed whether fan fiction tropes could be protected by copyright.

“We were looking at cases to see if the courts had ever dealt with anything like this before, dealing with the emergence of this new literary genre,” said Gideon Lincecum, a lawyer who represents Quill Ink and Ms. Ellis. “We found there weren’t any.”

. . . .

Last year, an author who writes in a popular romance subgenre called “Reverse Harem High School Bully Romance” — a trope in which a teenage female character has several aggressive male suitors — claimed that another author had copied her books, and demanded that she remove them. The accused author briefly removed her work from Amazon, but restored them after consulting a lawyer.

Other authors have tried to use trademarks to go after their rivals. Writers have attempted to trademark generic phrases like “dragon slayer” and even the word “dark.” In 2018, the self-published romance author Faleena Hopkins caused a scandal after she registered a trademark for the word “cocky,” and sent infringement notices to other romance authors who used the word in their titles. Amazon temporarily removed some books, including “Her Cocky Firefighters” and “Her Cocky Doctors.” After suing several people unsuccessfully, Ms. Hopkins backed down.

Like Cockygate, the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals. Under the Digital Millennium Copyright Act, individuals or companies can send takedown notices to retailers as long as they have a good faith belief that their work has been infringed. Retailers are protected from being named in related litigation if they remove the material, and many websites comply with D.M.C.A. notices without even investigating the claims. Legal experts say the system is easily abused.

“We’ve seen lots of examples of people sending D.M.C.A. notices when it’s pretty obvious that they didn’t think there was copyright infringement,” said Mitch Stoltz, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital rights group. “There’s not much accountability.”

On May 21, the U.S. Copyright Office released a report detailing how the 22-year-old D.M.C.A. has failed to keep pace with the anarchic digital ecosystem, as online platforms have been overwhelmed by a crushing volume of takedown notices. Between 1998 and 2010, Google received fewer than three million such notices; in 2017, the company got more than 880 million — an increase of more than 29,000 percent, according to the report. Many requests are legitimate, but the report notes that other motives include “anti-competitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”

Amazon agrees that it’s a problem. As the rise of self-publishing has produced a flood of digital content, authors frequently use copyright notices to squash their competition. During a public hearing hosted by the U.S. Copyright Office in 2016, Stephen Worth, Amazon’s associate general counsel, said that fraudulent copyright complaints by authors accounted for “more than half of the takedown notices” the company receives. “We need to fix the problem of notices that are used improperly to attack others’ works maliciously,” he said.

In the Omegaverse case, Ms. Cain’s claim of copyright infringement against Ms. Ellis has struck some as especially tenuous. “They are not very original, either one of them,” said Kristina Busse, the author of “Framing Fan Fiction,” who has written academic essays about the Omegaverse and submitted expert witness testimony for the case on Ms. Ellis’s behalf. “They both stole from fandom or existing tropes in the wild.”

Intellectual property experts say copyright protection applies to the expression of ideas through particular phrasing, but doesn’t cover literary tropes and standard plot points. The writer of a crime novel, for example, can’t copyright the notion of a body discovered in the first act and the killer getting caught in the end.

But the Omegaverse case is likely the first time these legal arguments have been invoked in a dispute over works that grew out of a corpus of fan fiction generated informally by thousands of writers.

Link to the rest at The New York Times

PG will note that, both before and after the NYT article was published, a couple of truly nasty lawsuits between the two authors and/or their publishing entities were being fought.

PG will observe that, among lawyers, if litigation of any sort features attorneys being replaced by new attorneys on either or both sides during the litigation, uninvolved attorneys may conclude that the case may be a difficult one for a variety of reasons. Some lawyers, as a matter of general policy, will refuse to accept a case in which prior counsel quit or was fired (assuming that prior counsel is among the few practicing attorneys generally known to be an idiot, a situation which is even more rare than a client wanting to switch legal horses in the middle of a stream).

That said, Ms. Cain was successful in getting the suit filed against her and/or associated entities by Ms. Ellis dismissed.

Here’s a link to Ms. Cain’s story of the lawsuit. In her story, Ms. Cain claims The New York Times did not present the facts behind the dispute with complete accuracy.

PG doesn’t know if Ms. Ellis has made any public comment concerning the disposition of the case. If any of the visitors TPV knows of such a comment by Ms. Ellis, PG would be happy to review it if he receives information about it. The Contact link on TPV is an easy way to send such information to him.

1 thought on “A Feud in Wolf-Kink Erotica Raises a Deep Legal Question”

  1. As someone who has written fanfic I’ll be watching this. It will be very interesting to see how it plays out.

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