Copyright: The Alpha and Omega(verse)

UPDATE 03/15/2019: One of the parties has created a website about the litigation, which posts additional information and some court documents I didn’t have when I wrote this post. I am adding another post as this one is already quite long. See: Not Walking Away From Omegaverse.

As sometimes happens, I was wandering the wilds of Twitter and started running across references to a legal spat between two authors. In this case, two romance authors who both write in the “Omegaverse,” an “alternate universe” or AU, which is used by a large number of writers, both commercial and amateur, as a setting for romance novels of various kinds and levels of explicitness. So be warned: both the case documents (which I’ll be discussing) and the setting and subject matter of the works will produce some very not-safe-for-work results if you search for them. Here, there be monsters. Some literal, as a common element of Omegaverse fiction is werewolves and other shapeshifters.

This spat involves DMCA notices, but as of this writing (3/14/2019,) does not involve a lawsuit for copyright infringement. Instead, the copyright part is a much less common and (to laypeople) much less well-known type of copyright lawsuit called a Declaratory Judgment action. How that works is that someone accuses someone else, not in a lawsuit but just in direct or public communication, of infringing their copyright, and the accused goes to court and files a lawsuit asking the court to rule pre-emptively that their work does not infringe the accuser’s work.

In this case, an author who goes by “Addison Cain,” published by a publisher known as Blushing Books Publishing, accused an author who goes by “Zoey Ellis,” published by Quill Ink Books Limited, both of plagiarizing, and outright infringing on the copyright of, her Omegaverse-setting romance novels. Cain allegedly set some of her fans after Ellis, including inciting them to post bad reviews for Ellis’s books. She (and/or her publisher Blushing Books) also filed Digital Millennium Copyright Act takedown notices (click here for a discussion of the DMCA) against some of the books, allegedly including one which hadn’t even been published yet. As I said in the linked post above, the DMCA is not a Weapon for Great Justice, and trying to use it as one is a Stupid Legal Trick which can backfire on you if you don’t do it appropriately.

By the by, according to Quill Ink (see complaint linked below) one reason Blushing Books’ DMCA notices were iffy is that Blushing Books hasn’t registered the copyrights for two of Cain’s books. I have no idea if this is true, but I hope not, because if so, it makes things even worse for Blushing Books because of the recent “Fourth Estate” decision. Also, it looks bad to be sending legal notices and Cease and Desist letters threatening legal imminent legal action (see below) about copyright infringements when you haven’t got registration certificates. REGISTER YOUR COPYRIGHTS.

Ellis was, understandably, Not Happy about having her books taken down, and filed counter-notices. Eventually, so far as I can tell, all the books got put back up, but it took quite a long time, cost Ellis sales, and probably interfered with the momentum of publishing what is currently a seven-book series with the eighth book pre-announced. Plus, she is now branded a plagiarist and copyright infringer by a prominent genre author, and has received any number of bad reviews spurred by the dispute rather than the actual content and quality of her books. You’d be mad, too.

A rather bluntly threatening email (click here to read it) from the CEO of Blushing Books to Ms. Ellis’s publisher, Quill Ink Books Limited (which to mix things up a bit is a UK entity) was apparently the last straw. I don’t know if the publisher actually consulted with an attorney before sending that email, but if they did I hope the attorney warned them that sending it could cause what happened next to happen. See, normally just casually saying things like “she copied me,” even in public, are not enough to give rise to what we call “standing” to sue for a declaratory judgment. But by sending that email, they may very well have done so. Here’s a quote from a 2007 Supreme Court case called MedImmune, Inc. v. Genentech, Inc. which discusses the standard for declaratory judgment:

“[T]he dispute must be “definite and concrete, touching the legal relations of parties having adverse legal interests,” “real and substantial,” and “admi[t] of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”

Citing even older precedent, the Federal Circuit summarized:

“Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

(From: https://www.pharmapatentsblog.com/2012/04/05/federal-circuit-looks-at-requirements-for-declaratory-judgment-jurisdiction/

The email was definite and concrete, and definitely identified an imminent legal controversy. It’s reasonably arguable that it put Ms. Ellis and Quill Ink in fear of a pending lawsuit… and so, gave them standing to ask the court to go ahead and address the dispute. Which she did, in a case now captioned QUILL INK BOOKS LIMITED v. ABCD GRAPHICS AND DESIGN, INC. (USDC for the WD of OK, Case 5:18-cv-00920-G.) You can read the Amended Complaint here:

First Amended Complaint, Quill Ink Books Limited v. ABCD Graphics and Design, Inc.

Now, whether or not they actually intended to file an expensive, burdensome, and quite frankly somewhat iffy Federal lawsuit against Quill Ink, Blushing Books is in one. And one they did not start, which is a tactical disadvantage.

That covers the first interesting legal question, which is how Quill Ink started a copyright lawsuit against Blushing Books when it was Quill Ink who allegedly infringed a copyright. Now the second legal question: what is Quill Ink actually suing about, and are they likely to succeed in suing about it? (Okay that’s two questions.) The answer to the second one is, obviously, “it depends,” but let’s talk about what she’s actually suing over and then get on with the dependanalysis.

This is a Federal lawsuit and Federal courts have what is called a “notice” pleading standard: the Plaintiff just has to give the Defendant enough notice to understand what they’re being sued for so they can formulate an answer as to whether they want to deny it, deny it’s suitable subject matter for a lawsuit, deny that the court even has jurisdiction over them in the first place, et cetera. So it’s early days. Blushing Books has not filed an answer at all. Quill Ink has filed only the complaint and a few supporting exhibits. All I have to go off of is that and what I’ve picked up from random strangers on the internet. So please understand that this is HIGHLY SPECULATIVE and most CERTAINLY does not constitute legal advice. Thank you.

Quill Ink says it’s “seeking injunctive relief for malicious interference with contract and for copyright misuse; and for damages for misrepresentation of copyright claims under the Digital Millennium Copyright Act, tortious interference with prospective and existing business relationships, defamation, false light, negligence, civil conspiracy; and for declaratory relief.” Whew, that’s a mouthful. But what it all boils down to is that Blushing Books wrongfully claimed that Quill Ink infringed its copyrights in various ways, and by doing so caused Quill Ink harm in various ways. So really the first question to ask is, did Blushing Books wrongfully claim that Quill Ink infringed its copyrights?

As usual in this sort of case, the words “plagiarism” and “copyright infringement” are being used interchangeably by a lot of people (including, allegedly, Blushing Books.) They are NOT interchangeable. A particular act can be both, either, or neither. If I quote an entire chapter of someone’s book in my own book, but give them appropriate credit, by definition that cannot be plagiarism. But it most certainly can be copyright infringement, credit or no. Contrariwise, if I write a scholarly article which quotes extensively the factual research findings of another scholar but doesn’t credit them, that’s plagiarism, but it may or may not be copyright infringement. I am only going to talk about copyright infringement because I’m a lawyer and the law does not recognize (mostly) plagiarism as a legally redressable wrong, only copyright infringement. So please keep that in mind.

In copyright, there is a legal doctrine called “Scènes à Faire,” which translates literally as “scenes to do” but by which we mean “elements which must be included.” It’s more than just scenes: it’s elements. For instance, if you are writing a fairy tale, there must be magic, and there will probably be fairies. Those elements, the Scènes à Faire, are not protected by copyright. You cannot copyright the idea of a fairy tale: you can only copyright the specific expression of the specific fairy tale that you write. That’s why Disney can’t stop Universal from making “Snow White and the Huntsman” even though it has common elements with Disney’s “Snow White,” like a princess usurped by her stepmother, the huntsman sent to kill the princess, her dwarf protectors, et cetera. Those are all ideas, and descend from a much older cultural heritage which belongs to all humankind. If you want to tell a story about Snow White, you have to use them, or it isn’t a Snow White story.

The Omegaverse is a shared universe which individual authors can pick and choose, and to an extent adapt, elements from, but if they want a story to be an Omegaverse story it must contain a certain number of those elements and they must have a relatively limited amount of variation. Prominent romance writer Courtney Milan posted this Twitter thread:

referring to this blog post by author Golden Angel:

https://goldeniangel.blogspot.com/2019/03/drama-in-omegaverse.html

which goes into the differences and similarities between the books in question. Ms. Angel properly differentiates between common elements (the Scènes à Faire ) in the Omegaverse, and what she thinks are the not-so-common elements. This gets complicated quick, not least because historically Omegaverse fiction was primarily about male/male relationships and both Ms. Cain and Ms. Ellis write about male/female relationships and thus the applicable Scènes à Faire are arguably a little less well-defined when it comes to the Omegaverse.

Here’s my take on this particular question after reading Ms. Angel’s well-written blog post: the things she cites as possibly not (yet) Scènes à Faire in Omegaverse fiction may well not be. I wasn’t familiar with the Omegaverse prior to about two days ago. But they are, in my opinion as someone who has read and written romance stories (there’s a lot you don’t know about me) is that they are fairly well-known Scènes à Faire, or “tropes” if you like that better, in romance fiction. Nothing she describes as happening, outside of Omegaverse particulars, in either story is something I haven’t seen happen in one or more non-Omegaverse romance stories. She claims to see similarities “… in both books, scene after scene, beat following beat with only a few differences between the plot structure.” She’s read the books and I haven’t: I can’t and won’t dispute her opinion. But if both books consist of a layer of Omegaverse tropes hand-craftedly laid over a base of romance fiction Scènes à Faire, that is exactly what we would expect to see. And in neither case would copyright protection extend to those elements of the works.

So, knowing only what I know now, and not having read any of the works in question, after reviewing what Ms. Angel does not hesitate to admit (to her credit) to be an analysis sympathetic to Ms. Cain, I still find it unlikely that any significant copyright infringement is occurring here. At least, in my opinion, nobody has alleged facts which support such a theory. This, of course, is bad for Blushing Books if true. The claims of infringement would be unfounded in that case. Which supports the underlying theory of Quill Ink’s lawsuit.

Note, however, that this does not mean that Ms. Cain’s accusations were made in bad faith. Ms. Cain, to my knowledge, is not a lawyer, nor is the person who wrote the threatening letter. The threatening letter claims they got advice from an attorney before writing it. So my presumption is that the claims were made in good faith, even if they were not supported by the facts and the law. (Bad legal advice does not translate to acting in bad faith: acting “with advice of counsel” is a possible defense to a claim bad faith. Yet another reason to talk to a lawyer.) That may very well be relevant here, and very likely is relevant to the claims of defamation in particular.

Let’s assume, then, that Quill Ink’s fundamental allegation is correct: Blushing Books and/or Addison Cain claimed copyright infringement where none exists, acted on those claims, and damaged Quill Ink/Ms. Ellis accordingly. As we say in the legal biz: “So what?” Let’s look at each of the basic elements in Quill Ink’s preamble in turn. These don’t match up exactly with the actual counts set forth in the complaint, but close enough, it hits the high points, and this is already getting kind of long. 🙂

We’re going to do them out of order because the last one is the easiest to discuss.

First: Declaratory Relief

Quill Ink wants the Court to find that Ellis’s books don’t infringe on the copyrights of Cain’s books. We already talked about that: my tentative, totally-prepared-to-be-mistaken view is that they don’t. If the Court agrees, they will issue a declaratory judgment to that effect, which will be binding on Cain and Blushing Books, to varying degrees, in United States courts and at least highly persuasive to other courts throughout the world. If she gets this, Blushing Books/Cain will not be able to sue Quill Ink/Ellis for copyright infringement, because the question will be res judicata, a thing already adjudicated. You can appeal such a finding, but you can’t get another bite at the apple in a different court for the same set of facts. It will prevent any future takedown notices being filed, at least if Blushing Books/Ms. Cain want to avoid being liable for outright perjury. It may also be useful, frankly, as support for the assertion that other takedown notices issued by Blushing Books/Ms. Cain in future should be taken with a grain of salt. That’s not so much a legal problem as a problem of general/business credibility but it is a very real problem.

Second: Malicious Interference with Contract

This is a pretty standard claim (also known as tortious interference) that you make whenever somebody does something that arguably would induce someone to breach their contractual obligations to you. Here, the DMCA notices, and the allegations of copyright infringement, made it more likely that resellers would refuse to stock Ms. Cain’s books – which, in fact, they did, at least temporarily.

In practice, this claim can be very hard to prove, and I’m not licensed in Oklahoma, whose laws will probably govern the determination of the validity of this claim. So I’ll just say that in general, knowing what I know now, I think this claim is a long shot at best. But we usually include it if we can make a colorable claim, and there’s nothing unethical or immoral about doing so as long as the attorney believes a colorable claim exists.

Third: Copyright Misuse

Copyright misuse is, generally, an equitable doctrine that says you can’t enforce a copyright against someone if you’ve acted improperly or inequitably in enforcement. It’s a defense, not an actionable claim itself. This has to do with things like Blushing Books claiming that it had registered copyrights in Ms. Cain’s books when in fact it did not, claiming that it had a registered trademark in its trade name when in fact it did not (By the way, unless I am quite mistaken they most definitely did do this and they still are and wow was THAT a bad idea, where was their counsel?) and a general pattern of allegedly inequitable conduct in enforcing its rights against Quill Ink as well as other authors which was designed to illegitimately stifle competition, not enforce a legitimate right.

There are usually no damages awarded for copyright misuse (although you could always make an equitable argument for sanctions and/or attorney’s fees, which you might get if the conduct was inequitable enough.) It’s just another offered reason for the Court to issue a declaratory judgment that Blushing Books can’t enforce its copyrights against Quill Ink. It should be noted, though, that unlike a defense of non-infringement, a defense of copyright misuse can be overcome later if the copyright owner cleans up its act and the effects of the misuse have dissipated. So if they win this, but not the broader non-infringement ruling, Quill Ink could theoretically be sued at some point in the future.

While we’re on the subject of inequitable conduct: If you were my client – and I’d love to have you – I’d tell you not to post messages like the ones Ms. Cain posts specifically asking her fans to mess with her review scores. Just don’t. Not only is it in my opinion of dubious morality, it’s probably a violation of the Terms of Service of most online resellers like Amazon, B&N, Kobo, and Smashwords. It will be of small consolation to Ms. Cain if she gets out from under this lawsuit with little or no damage but gets a bunch of books (or even herself) permabanned for TOS violations that it brought to light.

Fourth: Misrepresentation of Copyright Claims Under the Digital Millennium Copyright Act

The DMCA provides (in Section 512(f)) that making a knowing and material misrepresentation in a takedown notice, or a counter-notice, is prohibited and if it is done, the person or entity making the representation can be liable for damages caused by the misrepresentation as well as related costs and attorney’s fees. Quill Ink claims that Blushing Books knew darn well that there were no legit copyright infringements when they sent the takedown notices, and therefore they should be held liable for doing so.

It should be particularly troubling here for Blushing Books that they sent a DMCA takedown notice for an unpublished work. The DMCA does not allow for “anticipatory” takedown notices. If the work was not yet published, it is difficult to see how they could have filed a takedown notice in good faith.

If Quill Ink wins on this count, they can get damages they can reasonably prove (lost sales, costs of preparing and filing the counter-notices, etc) as well as potentially getting attorney’s fees. That latter is a serious issue for Blushing Books, as the fees involved are likely to be many tens of thousands of dollars even if Quill Ink can only prove nominal damages.

Fifth: Tortious Interference with Prospective and Existing Business Relationships

Basically see Item Two above, only this is about making it so that other people are less likely to want to contract with the plaintiff generally, and not just in relation to breach of a specific contract. Again, not licensed in Oklahoma, not familiar with the laws, but as a general principle, iffy but probably a colorable claim at this stage.

Sixth: Defamation

Quill Ink claims that Ms. Cain, and other currently unnamed parties, published false and defamatory statements about the alleged plagiarism and copyright infringement which caused Quill Ink damage. (“Defamation” is the general case of “libel,” which is what pedantic lawyer types would call this.)

Once more: Not licensed in OK, not familiar with their laws. In general, you can only be found liable for making defamatory statements in the US if the statements are not true and you knew or should have known that they were not true. So this falls back, once again, on the state of mind of Blushing Books/Ms. Cain, as well as the actual truth of the statements. If the Court finds that the statements were true, or that the Defendants didn’t know and had no reason to believe that they were false, there can be no liability. If both of those things are not true, then there very well might be, though damages would be tricky to prove.

I will say that in general, sending your Internet Minions to attack people is a very bad idea, and you should not do it, both for moral reasons and for legal ones.

Seventh: False Light

See Defamation above. Same sort of thing with some different parameters, and not really within the scope of this discussion.

Eighth: Negligence

Negligence, generally, is failing to act with reasonable care and causing damage to another person or entity thereby. If you act negligently, you are usually liable for the damages you cause. Here, the argument is that even if the takedown notices were not knowingly sent in bad faith, no reasonable rightsholder would have sent them, or acted the way Blushing Books/Ms. Cain did in general, that their unreasonable actions caused damage to Quill Ink, and therefore they should be liable.

Yet again, not licensed in Oklahoma, not familiar with their negligence laws, and this is a ways removed from our general topic of copyright infringement and the DMCA. Generally speaking, though, I don’t see this having much chance of success. If Blushing Books knew what they were saying was false, then they are probably liable for it on one or more theories. But if they didn’t, then I don’t know I would agree that they acted all that unreasonably, especially if they did in fact act with advice of counsel.

Ninth: Civil Conspiracy

Conspiracy, legally speaking, is just two or more people working in common cause to do something illegal or unlawful. The thing about conspiracy is that it doesn’t require that they succeed or even make a serious attempt to do the illegal thing, only that they work together and take some material action in furtherance of the illegal/unlawful acts.

This is way, way outside the scope of this post, so I’ll just say that a) If any of the above torts were in fact committed and people worked together to commit them, a conspiracy could theoretically exist, b) civil conspiracy is another claim that we often enter if we can at least sorta kinda justify it but which rarely pans out, and c) I’m not licensed in Oklahoma and have no idea what their civil conspiracy jurisprudence looks like.

Having recited all those things, Quill Ink goes on to ask for injunctions to stop the Defendants from continuing to make improper copyright claims, defaming it, breaking laws, being bad, et cetera, for damages for the things damages can be awarded for, punitive damages for being such naughty little monkeys, attorney’s fees and costs of suit, and whatever else the Court might be pleased to award it. The End.

WOW, that got long. (It’s almost TWICE as long as my initial #Cockygate post!) There’s a lot going on here. As far as how it’s going to come out? Who knows? Not me, that’s for sure. But if you want a summary of my highly tentative, not-at-all-in-any-way-shape-or-form-legal-advice opinions about the matter, here they are:

A) If the things in that complaint are even within hailing distance of the truth, Blushing Books was in no way in the proper position to send that email to Quill Ink, and they should not have done it.

B) With the same caveat, those DMCA takedown notices were a colossal mistake, especially the one against the allegedly then-unpublished book.

C) Based on what I know now and with the disclaimer that I will change my opinion in a hot minute if and when more information comes to light, I don’t think that Blushing Books has or ever had a significant copyright infringement claim against Quill Ink. And if so, unless the case goes away first (which I think is more likely than not for multiple reasons) Quill Ink may very well get at least the injunctive relief it seeks.

D) I also think it’s more likely than not that if the case went to trial, Quill Ink would not get significant damages based on what I know now. But they might very well get some. And I see multiple ways that they could get fees and costs, which could be catastrophically expensive for Blushing Books.

E) Don’t stir up Internet mobs and don’t encourage people to violate TOS when your livelihood depends on the good will of the Internet in general and the entities whose TOS are potentially being violated in particular.

By the way, while I love doing this sort of education and outreach, I’m trying to start a law practice here, and it really helps encourage me if people express their appreciation tangibly, so to speak. So if you could see your way fit to dropping me a Ko-Fi donation or two (click here to send) I would really appreciate it. If you can’t, I understand and I still hope you found this interesting and educational. And of course if you are in need of legal services, please reach out! (Information on retaining me is here: Hiring Me As Your Attorney.)

As always, questions and comments are welcome here, on Twitter (@legalinspire) or by email (marc@legalinspiration.com). Thanks for reading!

M

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