On the Kenyon/Clare Lawsuit

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Recently Dark-Hunter author Sherrilyn Kenyon sued Shadowhunters author Cassandra Clare for “willfully copying” her novels. As a disclaimer, I have read only Clockwork Angel by Clare and nothing by Kenyon, so I have no personal take on the issue. However, I have seen a lot of Clare fans defending her work on the bases that the copying isn’t word for word, you can’t copyright ideas, and the authors just happen to be using the same tropes. Barring the implication that plagiarism limited to word for word copying and pasting (it’s not), these are valid points. However, the question of whether Kenyon has a case—or at least a legitimate complaint even if the letter of the law isn’t one her side—runs a little deeper than the question of whether anyone can “really” write anything original or we’re all just recycling tropes.

As I’ve mentioned before on the blog, if you’re going to be reductive about it, you can summarize just about any book to make it sound like 500 other books. “It’s a rag to riches story.” “A girl goes to a new high school and falls in love with a bad boy.” “A girl dresses up as a boy and trains to be a [insert traditionally male occupation].” This is the problem that Kenyon faces when trying to summarize the ways in which she believes her series and Clare’s are suspiciously similar. The document submitted summarizes the works by saying both “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.” (Source) Yes, this description could be about any number of fantasy books—but only because it’s vague and doesn’t take into account the characters and plot as a whole. It doesn’t do any particular book justice as a summary at all.

Kenyon does get more specific. She further alleges: “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.” And this the place where things get sticky. Defenders of Clare point out these are all just tropes anyway. How many stories have you read where someone has a cool glowing sword? How many have you read where the protagonist turns out to have a paranormal parent? Surely Clare and Kenyon could have come up with these stories individually, just based on shared literary influences.

And, yes, there is no reason it isn’t possible they independently drew on the same literary tropes; however, that doesn’t make it irrational for readers to become suspicious if a large number of the same literary tropes appear in two works used in similar ways and presented in a similar order. If I write a book about a spunky orphan who gets adopted by a couple on a farm and goes on to become beloved by her new community even while getting into scrapes, it would make sense for people to wonder whether I was influenced by Anne of Green Gables, but there’s also the explanation that orphans are common in children’s literature, as are growing up stories, and there’s no reason my character can’t live on a farm. But if I write a book about a an orphan unhappy with her hair color who gets adopted by a brother and sister and then goes to on to become bosom friends with her next-door neighbor while getting into fights with a handsome and infuriating boy at school, it starts looking bad, even if the girl’s hair is blue and all the action takes place on an alien planet 3000 years in the future. There’s still no reason I couldn’t have come up with this on my own—Why wouldn’t she be friends with her neighbor? Why wouldn’t there be a handsome love interest? These are common themes in novels, after all! But the problem is the build-up of similarities, and thoughtful readers will know what my influence was.

I don’t know which case is closer to the situation between Kenyon and Clare. Yes, two people can write a book about someone being incorporated into a society to fight demons in the modern world, be given an instruction manual and a fiery sword to do so, and fall in love with one of their fellow Dark/Shadow hunters along the way. None of that is necessarily “original.” But the case will have to hinge on exactly how many tropes and “common ideas” the two series have in common and whether it seems more plausible that Clare would have gotten all her tropes from one main source—Kenyon—or more plausible that each author thought of and then incorporated them into their books independently.

Update

Author Courtney Milan has uploaded the court documents to her website.  Exhibit 3 lists plot and character depiction similarities Kenyon is alleging.  Exhibits 4 and 5 try to make the case the trade dress of the series is similar.

28 thoughts on “On the Kenyon/Clare Lawsuit

  1. Yecheilyah says:

    All I have to say is that I’m glad I’m not a lawyer! It reminds me of the challenges involved with proving someone intended to do something or not. I haven’t read either books so I won’t throw stones, though the similarities are too close for comfort. I can only imagine how I’d feel in this situation.

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    • Briana says:

      Yes! I haven’t read enough to make a personal judgment either, but I have been oddly…not comforted by Clare’s defenders. I’ve seen everything from “Well, it’s not word for word” to “She made the teen version of Kenyon’s work” to “They obviously read the same books and had the same novels as literary influences; Clare didn’t read Kenyon’s work.” None of which is particularly convincing, to be honest, and these are comments from people who have apparently read both series and think they’re doing Clare a favor with these explanations.

      I’m not familiar enough with copyright law to know “how similar” the court will have to find the books to make a legal ruling in Kenyon’s favor, but I guess she felt certain enough to start the process. I also think that, regardless of nit-picky laws, there may simply be an ethical violation here.

      Liked by 1 person

  2. cat says:

    Kind of curious. This reminds me of the Armentrout/Mead criticisms. I kind of want to read Kenyon’s works to see what’s up.

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    • Briana says:

      Interesting. I didn’t know there was anything between Armentrout and Mead, but I also haven’t read either of their books. I buy the argument you “can’t copyright an idea” but I think you can lay a claim to copyrighting a particular set of tropes set in a particular order in a particular type of world, which seems to be what Kenyon is arguing for.

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  3. Geraldine @ Corralling Books says:

    Mm interesting discussion!
    I agree with you with this topic – I kinda think it’s a bit far-fetched to sue Clare for copying…because yeah a lot of these are typical tropes you see. It’s like…anyone from Doctor Who suing a writer for writing about time travel. I know it’s different mediums now, but yeah that was the first example I could really think of.
    Insightful discussion, guys 🙂

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    • Briana says:

      Yes, I think the question will be “How close is too close?” and then “What can you legally stick someone with?” Even if it were to become apparent Clare deliberately copied and then changed a few plot elements to make it “different,” there might be nothing technically against the law there. It would still be really sketchy and probably over a moral line.

      Liked by 1 person

  4. Kate Midnight Book Girl says:

    Clare has a history of borrowing heavily from other authors… but she did get her start in Fanfiction which is pretty much the definition of using a world and characters already created by someone else. But in the case of Fanfiction, no one is trying to hide that, it’s clear that the writer didn’t create the characters.

    I read Clare’s first three Mortal Instruments books, and they were just okay. I never felt the urge to read anymore. I did give her and Holly Black’s book The Iron Trial a read- but that was so thick with Harry Potterness that it made me angry. It wasn’t plagiarism, but it felt like a watered down copy.

    I don’t know that Kenyon will win. While Plagiarism doesn’t have to be word for word copy, and while I think it’s quite possible Clare copied the basic plot, I just can’t see a judge willing to dive into the question of whether story ideas can be plagiarized.

    I did read the Vampire Academy books. I was already a fan of Jennifer L. Armentrout, but hadn’t read her series until after I read VA. So far I’ve only read the first book in the Covenant series- Half-blood, and while there are differences, it was uncomfortably close to Mead’s story and characters. Again, not plagiarism… but something. I’ve heard that the Covenant books get better and less… VAish, but I’m not sure I’ll read the rest of the series.

    And do you remember all the Twilight-esque books that came out? There were so many quiet-girl-moves-to-new-town-and-falls-in-love-with-paranormal-boy-while-being-in-danger-and-all-the-other-boys-love-her-too. I think the pressure particularly in YA is to give books that will make fangirls drop serious money, and so that leads to a lot of very suspiciously similar books.

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    • Briana says:

      I think that’s the issue. Even if someone were to read the books and get a skeezy feeling that Clare literally sat down and thought “How can I copy this but make it different” (not saying she did, but that’s apparently what Kenyon is suggesting), that seems to not be a copyright issue. Based on past circumstances in publishing, it does seem as if publishers and authors know that even if that type of copying is deliberate and therefore morally questionable, nothing can happen to them legally. It’s kind of a “Well you can’t pin this on me so it doesn’t count” approach to plagiarism.

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  5. Stephanie B (@Chasm_of_Books) says:

    Personally, if Kenyon was concerned about this why did it take her so long to drop a lawsuit on Clare? I find it suspicious that she decides to do it now in the height of the series’ popularity. A movie has come out, there’s a TV show, multiple series, a lot at stake. But if the claims are true, why did she wait this long? It’s been nearly 10 years since the first book was published.

    I can’t speak for the similarities in the series as I haven’t read Kenyon’s books, but key to this case may also be the timeline in which things were published. Part of the problem is how much did either author use and when since Goodreads shows quite a few Dark Hunter books were published at the same time as The Mortal Instruments series.

    Honestly, the timing is really just hard to believe for me. Why wait until the height of a series’ popularity to slap a lawsuit on the author if not because you want their money? If you were actually concerned about plagiarism, then why not do it earlier? Other popular authors also had lawsuits slapped on them as well which really has me leaning towards the belief that the similarities are coincidences. If they series are similar, that just shows that neither are particularly imaginative since I can think of other books that also fit even the more narrowed description. It’s almost a sort of right of passage. You get popular enough, someone else sues you for plagiarism.

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    • Briana says:

      I’ve been trying to poke around the Internet to see if I can find a more complete list of the alleged similarities, but no luck so far. Because, yeah, from the two paragraphs or so that most news sites are quoting, I think it’s fair to say that they could describe any number of books. My assumption is that Kenyon must have a longer list to be making the case that “These aren’t just tropes. They’re the same tropes used in the same order and the same ways that I used them in my book and clearly were copied from my book and not from another source.” But I don’t know yet.

      I don’t know why she would have taken so long to sue. I hadn’t even heard of Kenyon before, to be honest. Possibly it’s because she now thinks Clare is popular/famous/wealthy enough to be worth suing and she wasn’t before or she decided she has enough time and money now to invest in a lawsuit. Though you make a fair point that very famous people not uncommonly face frivolous suits because people are just hoping they’ll win or they’re hoping to get 15 min. of fame. Because, I’ve heard of Kenyon now, right?

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      • Krysta says:

        My understanding is that the TV show prompted the lawsuit because the name Shadowhunters is similar to Dark hunters; before Clare’s brand was the Mortal Instruments, which is more distinct from Kenyon’s brand. Also, I don’t find it odd that a person would wait until it was profitable to start a lawsuit. If someone copies your work and finds no audience, I guess you’d be willing to ignore it rather than go through the hassle and cost of litigation. But if they begin to make money off a work you think is similar to yours, you might decide it was worthwhile to start a case.

        Clare was popular before, so I don’t think it’s a matter of popularity that prompted the litigation. I think it must be largely the question of how to brand the works.

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      • Saille says:

        Kenyon is fairly popular in paranormal romance circles. There is an extensive list of character trait conparisons out there. I can’t remember where I saw them. It’s an impressive list of fairly common traits for paranormal novels.

        I’ve read city of bones by Clare and four or so by Kenyon. YA books aren’t my cup of tea very often and Kenyon’s novels were extremely repetitous.

        Whay I find interesting is that the timing of this lawsuit seems fishy. Clare’s first novel came out in 2006 I think it might be 2007. The dark hunter universe has ben around since 1998 according to Kenyon. So, Kenyon came first, but it took her until now to cry wolf.

        I think the reality might have something to do with Kenyon having started to publish novels that are YA in 2010. and having tried to shop around a TV show, that apparently hasn’t taken off.

        Who knows what the truth is, the only thing I do think is it is unfair to assume that Clare is guilty, because she behaved badly as a fanfic writer.

        Saille

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        • Krysta says:

          My understanding is that Kenyon and Clare had had some sort of agreement/negotiations in the past, but that Kenyon considers the branding of the TV show (“Shadowhunters” rather than “The Mortal Instruments” as too close to her own books). And Clare’s actions as a fanfiction writer aren’t a part of this case.

          The case, actually, is extremely interesting because it is addressing exactly that dilemma you bring up–what’s the difference between using the same genre tropes and copying another’s work? Kenyon seems to be alleging that the trope similarities are set up in such a way that she believes Clare has plagiarized her work. Sort of like she’s saying, yes, glowing swords have always been a fantasy trope and everyone can use them if they want. But once you have two books (in a totally made-up scenario) with a glowing sword found in the basement of a half-spider/half-man by a ten-year-old girl with pigtails…maybe you’ve moved beyond just using tropes.

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        • Briana says:

          The link to exhibit 3 might be what you’re talking about. It’s an extensive list of how the characters align and how specific scenes align in the book. So, as Krysta said, what Kenyon is NOT alleging is that it’s a problem that, say, both characters get an instruction manual. It’s that two characters who are very similar both get a manual in scenes that look very similar. She’s not trying to claim copyright to tropes, but suggesting it’s possible you can copy the order and ways in which tropes are used in a particular work.

          Is it true? I have no idea. My main issue is that most of the news articles reporting on this case are fundamentally misunderstanding and misrepresenting what Kenyon is arguing in the first place. It’s not that no one else can write a book about people fighting demons. It’s that if your book about fighting demons looks suspiciously like hers in terms of character, plot events, sequencing of events, and use of tropes, maybe something else is going on that’s more than “similar literary influences.” Perhaps a question that’s hard to determine the answer to, but one I think is worth asking.

          I agree Clare’s fanfiction past isn’t relevant to the case, which is why I never brought it up in the post. Again, most articles keep saying it’s irrelevant…then give readers a 700 word run-down of the details.

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      • Krysta says:

        I haven’t seen anyone reference this before. Kenyon’s case make more sense when spelled out like this instead of explained as “both works have magical swords.”

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        • Stephanie B (@Chasm_of_Books) says:

          See, the problem here is still the timeline and the fact that neither series are particularly inventive; there are other series out there that could be boiled down just like these two have. If Kenyon is right, this might be just too difficult to prove since almost every detail is a common trope. From what I’ve read though, there are some revelations in the Dark Hunters series that took place after they’d already appeared in The Mortal Instruments.

          Even with the similarities, I would that the authors’ executions for the events would also play a big part of this as well. What makes this so problematic is that they are both using a bunch of tropes that have been used over and over again for years, in very similar ways.

          Clare was already using the term Shadowhunters quite freely a couple of years ago. I would think that Kenyon would have made a fuss at the start. (I think it’s stupid that Clare and her publisher decided to drop The Mortal Instruments in favor of Shadowhunters to identify the series with. I understand why but The Mortal Instruments is a much better series title.)

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          • Krysta says:

            From what I’ve read, Kenyon did address this issue before and the agreement was Clare would not use the Shadowhunters as the brand name–which is why the television show prompted the lawsuit. I don’t know, of course, if such an agreement really took place or if it was verbal or written if it did.

            I think the tropes such as “a magic sword” are not convincing evidence, unless Kenyon is arguing it’s how the trope was used. For instance, if two series both had a ten-year-old girl who discovered a magic sword in the basement of their neighbor’s house, that’s more than “both series have a magic sword.” The extensive list of detailed character comparisons down to “both have an African American psychic neighbor who watches over and protects them” is where the elements start to look too similar.

            It’s like how anyone could write another magical boarding school story and it would be obviously inspired by Harry Potter, but if someone writes a magical boarding school story where the students are Sorted into Houses by a magical object, learn a new Dark Lord is rising, and have a groundskeeper who loves dangerous pets and a headmaster who likes candy, you’re starting to look a bit too similar.

            Of course, I’ve not read either series and I don’t know which character traits or tropes came first in which or how similar these traits and tropes are. But I do think Kenyon’s case is more detailed and nuanced than most of the articles are reporting.

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  6. Fan of it All says:

    Here is a little bit more on the lawsuit.
    http://www.courtneymilan.com/cc-complaint/

    I am just a reader, thankfully not a lawyer. Fan of both series, so here is some food for thought.

    Kenyon writes many different series and anthologies under two names in many genres. As far as I know this is the first time she has placed a complaint of this magnitude with a fellow author. She is aware of familier tropes and similarities in genres as she has written many series that have settings and historical likeness as other authors. She cowrites with other authors and when she has time to read, gushes over authors who write in genres she is a well known author for.

    The problem is, Kenyon has copyrights in place since the late 1990s/early 2000s. The timing of this lawsuit: She is a busy woman and was informed of the first infringement a couple years ago by her fans. She tried to address it, as she states in the complaint, with Clair and had a mutial agreement. The agreement, according to Clair, never happened. The argument that I think is the strongest is the symbol of the angelic rune; it’s extremely close to one of Kenyons symbols…as well as other runes. Wording used by Kenyon’s marketing team is now being used by Clair’s marketing team. Clair’s publisher even accidentally published Kenyons symbol on Clair’s books, and had to destroy thousands of them, when Kenyon informed them. Kenyon is well known in the publishing world as the first pararomance author, as they had trouble placing her Dark-Hunter series in a marketing genre for many years.

    Due to the timing, Kenyon fans believe she was informed of the similarities by hollywood due to her books finally being released by Kenyon (2012) optioned for tv and the big screen; which has been delayed and possibly halted due to the “similarities.” Many studios have tried to buy the Dark-Hunter rights since the late 90s, but Kenyon has said many times she is waiting for the integrity of her world to be represented on the screne. A small group of fans and avid readers of the series approached Kenyon and givem the rights. Kenyon has been busy the last few years cowriting the screenplay for both adaptations of the Dark-Hunter and extended universes (as well as writing her multiple series still being published, attending signings, and raising her sons woth her husband), so awareness of the “similarities” was most likely recent.

    I am a fan of both series, and was not convinced at first hearing of the lawsuit of the similarities. But after viewing the exhibit 3 comparison, (although some comparisons have minor misinterpretations) I sadly have to admit there are many character and situational liknesses. It was difficult to notice when reading because Keyon’s universe is very expansive the further you get into the overall plot, and they take place well over a decade (just about two decades) through novellas, anthologies, and the main character books. Clair’s story happens soo quickly, that the similarities could easily be overlooked as a few tropes. But I bet as a pitch broken down to hollywood studios, they sound like another book series that was just optioned.

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    • Briana says:

      I’m actually surprised more people aren’t talking about Exhibit 3. I’ve seen a couple other comments elsewhere people people who have rad both series also thought there was a little stretching to get some of the points to align, but overall they agree with the points. It’s a several-page document that backs up her claim Clare deliberately copied point by point (or character by character). And yet all the news sites are just quoting lines from the general court document about “both are given fiery swords with names.” Like, yeah, so is Bilbo Baggins.

      The case obviously goes a little deeper than that, which was kind of my point here. It’s possible to have accidental similarities in a genre, but how many can you have before they stop looking coincidental? I believe there’s a line somewhere, and this is an interesting case to see whether one was crossed.

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      • Saille says:

        I saw that list. I still find it hard to believe, if for no other reason than some of the instances/similarities under the Shadow Hunter column are incorrect according to SH cannon. I’ve only read one novel and I picked up on some of them.

        The runes struck me as interesting. Not because they are similar, but because they are based off the same source material. Kenyon’s employee the Theban Alphabet, and numerous Alchemical symbols. Clare’s seem to incorporate the Theban Alphabet, Alchecmical Symbols and Runes. The Angelic Rune from Clare’s series is nothing more than a slightly altered Othala Rune. Which interestingly enough represents inheritance/heritage.

        The idea that Clare’s publisher made a mistake like that seems shocking until you realize that that just means that the person who was putting together that print run made an error. A better question would by why did Clare’s publisher have Kenyon’s art work if that’s what the issue actually was.

        My problems with this could all stem from the fact that as a writer, the amount of time and energy it would take to copy that extensively from someone else is way more work than simply creating my own worlds/stories/characters would be.

        The other issue I have is that sometimes, seemingly specific things are actually just random coincidences. I wrote a short story a few years back and posted it to my Live Journal, and someone took the time to point out that my description of unraveling a magical spell was identical to a published author. I had never heard of the book she mentioned and never read anything by that author.

        I am not saying this is the case with Clare and Kenyon. I am just using that as an illustration of the fact that sometimes things we think are unique and special, really aren’t.

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        • Krysta says:

          I believe the allegations are resting on a matter of quantity. While assuredly most people will write something that has been written before–for example, there are other magical boarding schools besides Hogwarts and a lot of magic systems in books are probably similar (like a ring or stone having some sort of inherent magical property–there is presumably a threshold for how much similar material your book can have before people become uneasy. If your magical spell seems familiar, people will probably note it, then overlook it. If your magical spell, your characters, and your place names seem familiar, people stop overlooking the similarities. The question is whether this threshold is really quantifiable or otherwise provable. That is, will a court ever be willing to say “Yes, this book seems too similar but this book does not” even though both have unoriginal material?

          I’m not sure what you’re trying to allege about the covers. I don’t think publishers have stashes of other publishers’ artwork. I assume the marketing team accidentally commissioned a cover with Kenyon’s symbol because they thought it was Clare’s.

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          • Saille says:

            I wasn’t trying to allege anything. I just didn’t understand how one publisher could have art work to commission that belonged to another. I was thinking that the publisher would have to be in possession of the art work in order to have it printed. I guess not.
            No matter the outcome it won’t impact me in anyway. I just read the information regarding it because I was curious how these two completely different series could have anything in common. I am not a fan of either series, so I perhaps am not someone who would see these similarities.

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            • Krysta says:

              To be in possession of artwork, the publisher first has to hire someone to create it. I assume someone had seen Kenyon’s marks and thought they were Clare’s so they copied them.

              I haven’t read either series, either. I just think this is a fascinating copyright case since what Kenyon is alleging is very subtle–as indicated by the number of sources reporting that she is merely upset that both series have supernatural beings and magical swords.

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  7. Saille says:

    As someone who writes, not commercially, but for my own pleasure, I can’t imagine taking the time to slowly pick apart what someone else created. Especially, in order to borrow small intricate details in order to do what Clare is being accused of.

    I think it has far less to do with tropes, and more to do with the belief that Clare has stolen her marketing. Like Clare wrote her own novel and then dressed it up in the same clothes that Kenyon uses. Like a pale imitation.

    I am not sure that it creates confusion between the two series, because I wasn’t aware that Kenyon had even written a YA series until this lawsuit. Given the nature of the other DarkHunter books I would have never imagined trying to repackage the world for YA.

    I suppose we will just have to wait and see.

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