And the World Keeps Turning

 

I’m going to start this post with an admission. This isn’t the post I want to write. The post I want to write would set the interwebs on virtual fire because I am so frigging tired of seeing people I care about attacked and, in some cases, slandered simply because they aren’t spewing the right sorts of messages. I’m tired of being told that, for my work to be considered “quality” science fiction, it has to do more than be well-written and and entertaining. It has to satisfy some checklist to be sure all the right sorts of characters are included. I’m tired of being told I can’t write certain characters because I’ve never walked in their shoes. Most of all, I’m tired of being told I’m not the right sort of fan because I haven’t spent years going to the right cons and serving on the right con committees. If I were to write that post, I would burn the ears of our more civilized MGC members and make even the Powder Blue Care Bear with a Flamethrower blush. So, that’s not the post I’m going to write. Instead, I am going to do something that I rarely do. I’m going to congratulate the Guardian on a couple of articles from the last week or so and talk about them.

Yes, yes, pick yourselves up off the floor. Even the Guardian can get something right once in a while. VBEG

First up is sort of a follow-up to Sarah’s post from last week. For a quick recap, Sarah mentioned, as part of the foundation of her post, the plagiarism lawsuit Sherrilyn Kenyon has filed against Cassandra Clare. I will give the same caveat here that Sarah gave in her post. I have not read the pleadings filed on Ms. Kenyon’s behalf. Nor have I read Ms. Clare’s books. That said, I have seen a number of people jumping in to condemn Ms. Clare, not on the basis of what she did or did not do in the series of books that are at the heart of the lawsuit but because of past actions she supposedly took with regard to fan fiction. No, I don’t know the details and, to be honest, I really don’t care. Unless Ms. Kenyon can prove her allegations with regard to this particular series, Ms. Clare’s past actions have little to do with it. If, and only if, the allegations are proven true should those past actions (also if true) be considered and then the judge hearing the case should use those actions in determining damages Ms. Clare would be ordered to pay.

But that doesn’t address why I am applauding the Guardian regarding this case. On Friday of last week, the Guardian published an article that addresses, from Ms. Clare’s point of view. Two things stood out for me and, yes, I know I am paying attention to lawyer-speak but the attorney, John Cahill, does bring up some interesting questions. First, “the lawsuit failed to identify a single instance of actual copying or plagiarism by Cassie.”  The second is that Ms. Clare has been writing these characters and series, iirc, for ten years. That’s a long time to wait before filing suit and part of me wonders if the fact Ms. Clare’s series is being made into a television series wasn’t the impetus for the suit.

To be fair, the suit does allege that Ms. Clare, in her series, does, “employ a line of warriors who protect the normal world from demons”, both cover how “a young person becomes part of the Dark-Hunters’ (or Shadowhunters’) world after being saved by a gorgeous blond Dark-Hunter (or Shadowhunter)”, and “both Dark-Hunters and Shadowhunters have enchanted swords that are divinely forged, imbued with otherworldly spirits, have unique names, and glow like heavenly fire”.

Now, I don’t know about you, but I can think of any number of books, short stories, TV shows and movies that could fall under that description. Those are, indeed, story elements, but does it rise to the level of plagiarism and copyright infringement? If that is all there is, I don’t think so. But, it will be for a judge and/or jury to decide. However, as Cahill points out, if Ms. Clare can prove that she developed and used some of the characters Ms. Kenyon is complaining about prior to Ms. Kenyon’s use of similar characters, that will strike a very strong blow against the suit being able to go forward. For now, however, it is something we all need to keep an eye on.

Think about it. If Ms. Kenyon wins and if, as alleged by Cahill, there are only general similarities between the authors’ works, the sort of chilling effect that could have on authors. Anyone writing a quest story that revolved around a searching party that consisted of elves, humans, dwarves and small people with hairy feet would have to stop and rethink whether it was worth possibly going up against the Tolkien estate. Coming of age stories in a dystopian setting where a teen girl steps up to keep a young sibling from possibly facing death could be challenged as being a rip-off of the Hunger Games.

In fact, what it reminds me of are some of the really bad publishing contracts I’ve seen, usually for themed anthologies, where the publisher or editor maintains not only the rights to the stories but to any and all characters used in the stories, including historical figures, locations — even real ones — and even themes. Under those contracts, they could try to keep one of their authors from, several years down the road, writing about Jack the Ripper if Jack was in that particular author’s story in the antho, even as a walk-on character. That sort of contract, if enforced, could have a chilling effect on publishing and so, too, could this sort of law suit if there aren’t specific — and I do mean specific — instances Ms, Kenyon can point to where Ms. Clare ripped off her copyrighted material instead of there simply being some similarities.

The second article by the Guardian is worth it just for the headline: Publishers should pay authors as much as their other employees. The article doesn’t say much that most of us here at MGC haven’t said before. Publishers complain about the rising cost of publishing and use that as an excuse for not paying authors more. However, those same publishers continue to insist on having their offices in high dollar office buildings in the middle of high dollar real estate areas in places like London and New York City. At a time when it isn’t unusual to find authors, especially new authors who aren’t being pushed by the major publishers as the “next big thing” receiving advances of only $5,000, “even the lowliest shuffler of proofs gets more than £11,000 a year.” Now, unless the dollar has taking a huge jump in the international monetary market, that “shuffler” is making about twice in a year what the author makes. Hmmmm.

It does make you think.

It also shows that publishers are still holding on, as tightly as they can, to the old business model.

Anyway, I’ve rambled enough. What are your thoughts about the articles? I’m going to find another cup of Death Wish and get back to editing.

 

53 Comments

Filed under AMANDA, WRITING: PUBLISHING

53 responses to “And the World Keeps Turning

  1. lampwright

    Very interesting. First, I applaud your fairness in praising the guardian. Second, I wonder if the sueing lawyer knows much copyright law. You can’t copyright situations… Only words.

    • I have heard there is a question of trademark as well as copyright, but I haven’t found, nor waded through the legalese of the actual filing so… *passes the salt*

      It does seem rather suspicious, and makes me wonder what else is going on.

      • There is and reading the original filing, and admitting that I am not an artist, I looked at the trademarked image in question and don’t see anything but the most vague resemblance. It really does seem to me to be a stretch.

    • TRX

      The guys at Popehat love fisking copyright lawsuits. I expect we’ll see something from them soon.

  2. Reality Observer

    I did have to take a turn outside to make sure the chirping wasn’t from pterodactyls and the trees were still green, not purple…

    But a stopped clock is right twice every day, after all.

    I’m sure the Guardian will be back up to snuff tomorrow. (Then I would love to read the other post. Allergy season starting up down here; a bit of incidental flame would probably be good for what ails me.)

  3. Any business that owns high-dollar real estate in defiance of their nominal industry’s economics isn’t really in that industry. Nope, they’re actually in the real estate investment business. (Frex, it’s been pointed out that real estate investment, rather than fast food, is McDonald’s actual business. http://www.aboutmcdonalds.com/mcd/franchising/FAQs.html “McDonald’s manages all the site evaluation, acquires the property and constructs the building.”)

  4. Joe Spiker

    I’ve read some Keynon awhile back and while entertaining one of my first thoughts was how similar it was to Laurell Hamilton. Not quite sure I spelled their names right. In this world there are almost no singular ideas. I’ve had conversations with people that have no knowledge of one another and they come up with the same idea for some project. It’s normally all about how can patent it first on in cases like this publish it first.

    • I had a job once, as the admin assistance in a consulting firm that dealt with inventions – gadgets of one sort or another, mostly. I’ve lost count of the number of instances that I saw the same gadget, developed by a tinkerer who thought his or hers was totally unique.

      The thing is – if there is a need or a problem that a little gadget of some kind can alleviate or solve – then the odds are that creative people working independently of each other — will spontaneously come up with pretty much the same solution. No copying, no stealing of other inventer’s ideas.

      I suspect it is the same with story-telling; that people thinking independently along the same lines will spontaneously and independently come up with similar plots/characters/concepts.

      • Paul (Drak Bibliophile) Howard

        Both John Ringo and S. M. Stirling came up (at the same time) with a story idea of “technology stopping”.

        Both acknowledged it and neither accused the other of stealing.

        • The Other Sean

          And Stirling’s earlier Island series was envisioned at roughly the same time as Flint’s 1632.

          • And movies – Volcano and Dante’s Peak, White House Down and Olympus Has Fallen, Mirror Mirror and Snow White and the Huntsman, Deep Impact and Armageddon and so on. Considering how deep pockets the Hollywood companies are supposed to have somebody would presumably have sued at some point if there were any grounds to do so.

        • And ‘The Machine Stops’ wasn’t something either were copying, I would presume, but more a situation of $FORCE causes technological failure of some sort?

          In the last few years I’ve started wondering if the ‘Machine’ was not mechanical, but more… bureaucratic? No, wrong word. Civil? Still not quite right. More the.. societal fabric, perhaps? People are getting wound up, but the machine is spinning down.

          • Paul (Drak Bibliophile) Howard

            IIRC “The Machine Stops” was about a break-down of the “Computer” that controlled that society, likely due to lack of maintenance.

            It wasn’t about some out-side force stopping technology from working.

      • Paul Beard

        This applies a lot in software, thankfully nobody seems to be trying to patent books so far

      • Heh. The first all-nighter I pulled was in my teens. I had an idea for a new type of generator, and spent the entire night designing, then sketching up the plans.

        The next morning I proudly set the plans on the kitchen table at breakfast. Whereupon my father took one look and said “Why are you drawing an alternator?”

        • Oh, and when I was about nine, I figured out how to desalinate water, by distillation.
          Crap, was I disappointed, when I realized that it had been done…

          • Confutus

            I invented the concept of regenerative braking when I was in high school back in the 1970s. It took the industry some twenty years to catch up with me. I’m not going to tell my lawyer that my drawings were artistic, not engineering and probably no longer exist or that I had no numbers to go with the idea. I don’t think those admissions would do my legal case much good. 😃

    • ravenshrike

      Would this be Hamilton’s Early Anita period, Smut for the Sake of Smut period, or latest Smut Heavy, but Bringing Plot Back period? Or more akin to her Gentry books?

  5. Bill S

    I stopped by the Baen Towers in Wake Forest, NC to pick up a new ‘I Read Baen’d Books’ bumper sticker after a recent fender-bender. Actually it was in a one-story set of business offices in a developed/redeveloped part of Wake Forest, probably leased(?). I’m glad readers come first in Baen’s world. I haven’t heard anything but praise from authors about that organization.

  6. Draven

    ehh, she won’t win

  7. Uncle Lar

    According to today’s quote of $1.43 per British pound that lowly shuffler is making more than three times a typical new author advance. Factor in that as a new author your publisher probably wants no more than one book a year it’s patently obvious that trad pub is for the hobbyist, the independently wealthy, or one destined to subsist on starvation wages.

  8. Here’s a link that purports to show the Complaint that was filed in Federal Court. I express no opinion on the merits, read it for yourself.
    http://www.courtneymilan.com/cc-complaint/1-main.pdf

    • I read and am still scratching my head. The two images provided to support the trademark infringement portion of the suit don’t look alike to me. Yes, there are similarities but not enough , to me at least, to be of any real consequences. Regarding the rest of it, it strike me a lot like the “space marine” idiocy of a couple of years ago. But that is not, of course, a legal opinion.

    • Feather Blade

      Well, I can see one problem with the complaint right off – the plaintiff’s protagonists are immortal, the defendant’s protagonists are not.

  9. Well, authors aren’t alone in this. When I worked the door at bars I usually made more for the night than the band, and the bartenders made a lot more. And graphic artists like painters and photographers usually lose money on shows, unless they sell a lot. You can get damned hungry going round and round the merry-go-round, waiting for your shot at the brass ring.

    • It is one interesting thing I hear round and round for commissioned stuff. A lot of the time there is caterwauling over how dilettantes can undercut the artistes who went to school for art (and are trying to make it in a field where the majority are college students or young adults). The soft arts like art and music are often overflowing and there’s always someone else that can take your place.

      Pop culture wise it’s a little sad that more people would recognize Bieber or Beyonce vs Jonas Salk or Otto Benz. Sometimes the dirty industrialists are more deserving than artists.

  10. Griz

    I’m reminded of John Fogerty. John’s band Credence Clearwater Revival signed an exceptionally bad contract with Fantasy records. John eventually came out with a solo album. Fantasy sued John for copyright infringement because the songs sounded like CCR songs that Fantasy owned the rights to. Told you it was a bad contract.

    Anyway, John won in court by playing many old and new songs for the judge. His lawyer said that of course the new songs sound like the old songs. All John Fogerty songs sound alike. The judge agreed.

    • JC

      Hank Williams jr. was sued for plagarism, and showed up with a guitar. After playing a number of country standards which all sounded the same, he said “Your Honor, there ain’t but 12 notes”. BANG! Case dismissed.

  11. There really CAN’T be new ideas, and if you are enough of an expert, not even new executions. Bobby Fisher quit playing chess because he said there were no possible new variants; of course, the fact that he is bug-house crazy may make that point moot.
    I do think that Brad Torgerson came up with a new variant of the BEM in Chaplain’s War. It wasn’t that variant that made the novel work, though.
    And a small, unrelated sigh. My last batch of reviews is past the half-way point, and while my Nick Cole review has drawn the most attention, it’s Alma Boykin’s “Lion of Judah” and Christopher Woods’ “This Fallen World” that I find to be the most memorable. I wish I could prevail upon the world to pay attention more.

    https://www.amazon.com/review/R1EY2T8THNK9W8/ref=cm_cr_rdp_perm

    https://www.amazon.com/review/R3UGOMDUZVMUJ0/ref=cm_cr_rdp_perm

  12. amiegibbons15

    I haven’t read the complaint either, so take with a grain of salt, sounds like they don’t have a case because you can’t copyright ideas, merely the expression of such. But this will affect writers in the future even though she probably won’t win because they will be afraid of a lawsuit. Unless you can get it tossed on summary judgement, and even that obviously costs some money, lawsuits are expensive. The Plaintiff is probably hoping the woman will settle to avoid a lengthy court battle. It’s sad but true, the fear won’t come if Plaintiff wins, it’s already here by virtue of the threat of a lawsuit. I’m going to look into it later, if I remember, and see where the case is. It may be just filed and awaiting a decision on summary judgment.

  13. I’d still like to read that other post someday. I’ll just put on my asbestos earmuffs.

  14. Alan

    I’m thinking the lawsuit, assuming it loses, is actually good news: Ambiguous law chills everybody who knows of the resulting risks; settled lawsuits help to make law less ambiguous. And the actual definitions of plagiarism and copyright violation are still excessively ambiguous.

  15. I read most of the “complaint,” and IMO it’s driven by a _low level_ publishing employee. Someone trying to “make a ‘name’ for him/herself.” I look for it to “blow up” expensively.

  16. First: Death Wish sounds like a coffee I should be drinking.

    Second: didn’t Games Workshop try this already? And failed?

    Third: I’m very disappointed that Kenyon did this. It has a strong sour stink of jealousy surrounding it.

    It’s also vastly stupid as Kenyon and Clare write for entirely different target audiences. Clare also has her books made into movies and the newly begun TV series is called Shadowhunters – which is probably why Kenyon is filing suit (still, ultimately stupid to do.) Mere similarity in names isn’t enough to own copyright on the idea. Even similarity in concepts isn’t enough because how a concept is explored may be done entirely differently. A good example are the series : .hack; Sword Art Online, and Log Horizon – they all have the basic premise of ‘player trapped in video game’ but each and every one of them focused on different approaches and theme and emotional outlook.

    So no, I don’t think so, Kenyon. And I hope she loses spectacularly.

    • Bjorn Hasseler

      Games Workshop appears to have learned something. The most recent version of their Space Marine rulebook is called “Codex Adeptus Astartes” with “space Marines” underneath. That’s their in-universe bureaucratic name, their own creation. Also when they retooled their fantasy game, they began shifting from generic fantasy race names like elf and dwarf to specific ones that probably can be trademarked.

  17. jon spencer

    This is starting to look like a good reason for “loser pays”.

    • snelson134

      Either that, or we need some judges who will start granting summary judgement, turning to the lawyer, and saying “Either you didn’t do your job and refuse to file this frivolous pantload, or you didn’t know enough about the law to realize it was a frivolous pantload. Either way, the cost of me educating you is to cover the attorneys fees and court costs for both sides. For the first lesson. Subsequent lessons will cost more until I decide you’re too stupid to learn.”

      Why, yes, I am a misanthrope. What tipped you off?

  18. I finished reading the complaint and I am still shaking my head. Unless there are some supplemental filings or addenda I haven’t seen, there is only on real “specific” claim and that is the trademark infringement regarding the logos of the two series. While I freely admit I am not an artist, looking at the two trademarked images, while I see some similarity, I would never confuse the two. As for the complaint that the “names” for the book series, etc., used by Ms. Clare are too close to those used by Ms. Kenyon — much less the overall argument that the series is too close to Kenyon’s and would confuse the readers — no. That does smack of what Games Workshop did with “space marine”. As I said, it will be interesting to see how this suit progresses.

  19. Christopher M. Chupik

    And, of course, the comments from the 770 peanut gallery:

    “JJ on February 16, 2016 at 9:26 pm said:

    (21) ANOTHER OPINION ABOUT THE KENYON SUIT.

    ACERBIC COMMENT ABOUT THE IDIOTIC PUPPY PROPENSITY FOR COMMENTING ON THINGS ABOUT WHICH THEY HAVE NOT BOTHERED TO EDUCATE THEMSELVES”

    “‘AsYouKnow’ Bob on February 16, 2016 at 10:21 pm said:

    (21) ANOTHER OPINION ABOUT THE KENYON SUIT.
    Hilariously, Green lets me recycle the same comment that I made last week about Hoyt: (http://file770.com/?p=27486&cpage=3#comment-398635)

    Huh. A Puppy leader has Very Strong Opinions about a matter they ADMIT they know absolutely nothing about.

    (…This is my surprised face….)

    I detect a pattern here.”

    “re (21)

    Is the defendant here one of the Puppies’ people? They seem to be going out of their way to dismiss allegations that at least have some fire behind them.”

    They never take a day off from being jerks, do they?

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  21. snelson134

    “Anyone writing a quest story that revolved around a searching party that consisted of elves, humans, dwarves and small people with hairy feet would have to stop and rethink whether it was worth possibly going up against the Tolkien estate.”

    OTOH, Amanda, it’s possibly a good idea to at least think about these things. There’s a reason why the AD&D Monster Manual references halflings rather than hobbits as D&D did; there’s also an even better reason why the second and subsequent printings of Deities and Demigods don’t show either the Cthulhu or Melnibonean mythoi. 😎

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