The stories of Cassandra Clare and Sherrilyn Kenyon, two New York Times-bestselling authors of fantasy novels, may contain very imaginative mythology, but it’s the legal developments between them that are drawing a lot of attention these days.
Kenyon filed a lawsuit in a district court in Tennessee on February 5th, claiming that Clare was infringing on the copyrights and trademarks associated with her Dark-Hunter book series, which was first published in 1998. According to court documents, the story is about immortal warriors “who fight to protect mankind from creatures and demons who prey on humans.” Kenyon owns trademarks to “Dark-Hunter,” “Dream-Hunter,” and “Were-Hunter,” among others. Clare is the author of The Mortal Instruments, a young adult-oriented series and spinoffs with supernatural hunters who are tasked with protecting humans as well. It was first published in 2007. Even though the lawsuit was only filed this year—interestingly enough, it seemed to coincide with the launch of a TV series based on Clare’s books—Kenyon’s concerns about Clare’s alleged copying go as far back as 2006, when her fans alerted her to the fact that Clare’s first book was going to be published, and it included her Dark-Hunter trademark. Kenyon demanded that “Darkhunter” be removed from Clare’s work and it actually was; it was replaced with the term “Shadowhunter.” Kenyon claims that Clare assured her that she would only use the term as a description for the warriors in the story, and would not expand it further in the universe of her books, or trademark it. However, Clare has since branded the series as the “Shadowhunter Series,” according to Kenyon, which Kenyon believes is causing confusion among consumers. Clare’s books have also been so successful that the series was turned into a movie in 2013, and was recently turned into a TV show on the Freeform network, formerly ABC Family, just this year, which premiered mere weeks before the lawsuit was filed.
The story on Clare’s end regarding her entanglement with Kenyon is quite different. Clare’s attorney told Slate that the authors never had any agreement and had never communicated before. Clare’s writing partner, Holly Black, explained that early drafts of Clare’s first book did use “Darkhunter,” but when Black received Kenyon’s book at a tradeshow in 2006 and saw “Dark-Hunter” on the cover, Clare and Black decided to change the term. Neither had heard of Kenyon before, Black says.
The copyright infringement claim is what stands out the most in Kenyon’s lawsuit. Under copyright law, a plaintiff has to prove infringement by showing: (1) ownership of a valid copyright and (2) copying of original elements. Copying is proved by: (a) access to the work and (b) substantial similarity. Access is usually easily shown if the work is published, so substantial similarity becomes the crux of a copyright case. Kenyon attached a (non-exhaustive) list of things from both novels to the complaint as evidence of substantial similarities, which includes:
- “The protagonists learn their purpose and how to fight various demons and their own personal inadequacies, while dealing with intricate family and friend issues.”
- “Both Series feature mortal or normal objects including without limitation a cup, a sword, and a mirror, each imbued with magical properties to help battle evil and protect mankind.”
- “Both Series feature ‘regular humans’ who are oblivious to the supernatural world.”
- “Different dimensions exist. Supernatural beings break through to the world of man. These worlds are not readily accessible to mortals.”
If any of this sounds familiar, it’s because Kenyon could be describing J.K. Rowling’s “Harry Potter” series, L.J. Smith’s “The Vampire Diaries” series, or any other fantasy novel out there. Also, don’t these seem a lot like ideas? If so, that is exactly where copyright does not venture. It can only protect the original expression of ideas—the way the author lays out the story using those elements—which helps to encourage more authors to create, even if they are working on something that is similar to what is already in existence. We don’t want creators to stop creating.
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There are many more commonplace examples on her list, so Kenyon may have an uphill battle on her hands just proving to begin with that these are not mere concepts, especially because some of the alleged similarities she points out show up in Clare’s books before they do in Kenyon’s, according to author Courtney Milan.
Stay tuned to our blog to find out how this suit plays out.
