So About That Sherrilyn Kenyon vs. Cassandra Clare Lawsuit

You’ve probably read about this already, but earlier this month, Urban Fantasy/Romance writer Sherrilyn Kenyon slapped YA author Cassandra Clare with a lawsuit.

The suit claims that copyright was violated when Clare used concepts that were originally under Kenyon’s Dark-Hunter novels and used in The Mortal Instruments. There are further claims that Kenyon approached her colleague some years back, in an effort to ensure that The Mortal Instruments franchise didn’t infringe on her own novels and sales.

Official word from Clare’s camp however, has since come out to refute those claims. Clare’s legal representation has asserted that Kenyon never contacted Clare, and that there isn’t enough basis to cite plagiarism.

There is little chance of anyone confusing Cassie’s young adult themes and orientation with the sometimes very adult storylines in Ms Kenyon’s books. Indeed, we expect that all of Ms Kenyon’s claims will be dismissed. (Source)

A quick summary of the case from The Guardian has summed up my own thoughts on why the lawsuit doesn’t look like it’s going to hold much water. I have to say though, that I am not surprised by this at all, given who it involves. It was only a matter of time before something like this happened.

 

Dark-Hunters vs Shadowhunters: What’s the Deal?

Based on what I’ve read of the official document submitted by Kenyon’s lawyer, the gist of the suit asserts that Clare “knowingly and wilfully copied” her series and several evidences are cited to bolster this claim.

The coverage of the proofs include how (1) both stories 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,” and the existence of a handbook and code to keep these hunters in line; (2) that the similarity in both series’ names and their use as titles in the books themselves are causing confusion between the two franchises, and (3) an exhibit setting one of the most recognizable tattoos from Clare’s Shadowhunters beside a sigil attributed to Jaden, one of Kenyon’s characters.

Cassandra Clare The Mortal Instruments Clary Fray Lawsuit Sherrilyn Kenyon
Lily Collins as Mortal Instruments heroine Clary Fray in the film adaptation of City of Bones. Photo taken from TMISource.com

Out of all the evidence put forward, that last one seems the most concrete: the designs do appear to echo each other. Sadly, it’s not enough to prove that the claim is valid. I have read both series, and outside of otherwise general similarities, I have a hard time saying that the two works are alike.

On the surface, the premises of these series look the same: you’ve got a world where supernaturals exist and naturally, there are individuals out there who Fight the Good Fight in order to protect humanity. It’s not werewolves and vampires that hold the position of the Big Bad though. This brings us to the case’s main point of contention: BOTH Dark-Hunters and Shadowhunters do battle against demons — but to be completely honest, demons cast as the opposition aren’t THAT uncommon if you’ve read or watched from the Urban Fantasy genre.

Seize the Night Sherrilyn Kenyon Dark-Hunters Cassandra Clare Lawsuit

Setting and flavor-wise, Kenyon’s world draws a lot from Greek myth: she reimagines the whole length and breadth of gods, goddesses and creatures from that mythos. On the other hand, Clare’s world has a more Biblical slant, since her Shadowhunters are descended from angelic roots.

They’re pretty different, though this is not to say that I can’t see why Kenyon’s fans are up in arms over this. (They were actually the ones who flagged the similarities to Kenyon.) When you take Cassandra Clare’s history and the assertions of plagiarism that dog her to this day into context, it’s difficult to dismiss the concerns of an author who’d built a fairly long career on a concept that they have a sense of ownership towards. It’s a writer’s worst nightmare to hear that there’s a possibility that your work might be getting ripped off and repackaged for mass consumption.

 

From Fanfic-writer to Best-seller: The Curious Case of Cassandra Clare

This opinion piece from back in 2012 is a fairly comprehensive breakdown of Clare’s controversial rise to fame, her roots in fanfiction, and its impact on the reception of her current body of work. I’m not saying that nobody likes her work — obviously, people do, if the new television series from ABC Family is any indicator. However, it is a fact that Cassandra Clare has been hit before with criticism that her inspiration from other books shows in a way that you either know where these ideas came from or feel just how derivative they are. The names may be different, but the execution is the same.

It is not unusual for fanfic writers to make the crossover from writing fan work to original pieces. There has, however, been significantly less scandal for a number of them. Notably, on a critical level, their works are more distinctive in their style and execution.

At this point, you might wonder what the big deal is. So what if Cassandra Clare used her fanfic and turned it into an original story? Isn’t it a natural natural consequence when you’re moving from writing about other characters to writing about your own?

Not necessarily.

A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. (Source)

I want to take this moment to go a little into how the protection of authors’ rights where fanfiction is concerned has been around for quite a while. Why? Because it’s always been relevant. It’s just becoming increasingly relevant as the publishing industry learns to adapt to changes in technology.

Cassandra Clare Shadowhunters TV series Sherrilyn Kenyon Lawsuit
A poster for the new Shadowhunters series which premiered last 12 January 2016 on Freeform.

Some ten to twenty years ago, “fandom” was confined solely to small groups who interacted via mailing lists and forums specific to their interests. However, the rise of social media and burgeoning interest in pop culture has made finding spaces online and people to interact much easier. Sharing fan work has come to the public domain, and publishers have even been known to look through these spaces to seek out new talent (hello, Wattpad, hello, E.L. James). It’s handy, being a writer with a prepackaged following. You have to admit: from a publisher’s perspective, signing on a writer like that means having a guaranteed audience and market to sell to.

Some authors are fine with fanfiction. Others opt to take a more hard-line stance to the point of explicitly stating that no one else can write about their characters, ideas and plot in order to protect their franchise and brand (you can find a fairly comprehensive list of authors for both sides of the coin over here).

It really boils down to the commercial aspect of things. To repeat what I mentioned at the beginning of this article, books and publishing these books are an author’s livelihood. The accessibility that the Internet brings to both sides of the writer/reader exchange admittedly gets a bit blurry, and the last thing a writer wants is a fan claiming that you stole a fan theory/idea and made money off it and vice-versa. I know J.K. Rowling wasn’t immune.

 

She Said/She Said: Who’s Right or Wrong Then

This brings me back to the issue at hand.

Is there definitive proof that Clare plagiarized Kenyon so much that we can say that there is legal basis for the suit? It doesn’t look like it. Does that mean that Kenyon’s concerns are unfounded? I don’t think so, nor do I think that it’s fair that this will (and is already for some) be chalked up to that thing called “Writer Envy” and a presupposed pettiness that Kenyon’s just doing this for the money.

Ideas might not be subject to copyright, and no one’s saying that you can’t ever write about an idea that’s been done before. It just bites that this looks like it will come down to Kenyon’s case dismissed, in spite of her good intentions to want to protect what she’s worked for.

That’s not fair for writers. When you think about it, that’s not fair to the writers’ fans either.

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Noey Pico
Audioromantic, geek and gamer. Currently a contributing editor to both Girls Got Game and What's A Geek, while occasionally moonlighting as fictional characters online. Flails a lot. A LOT.

3 comments

  1. I have to say that having read both of these writers books I believe Kenyon doesn’t have a leg to stand on. Never once in reading Clare’s books did I ever think of the Dark-Hunter books. Do you know how many books have characters fighting Demon’s, using swords, having tattoo’s being descending from God’s or angels. So many Urban Fantasy/Paranormal stories use some or all of these story lines. Does Ms. Kenyon plan on taking those writers to court. If someone has a series called Demon-Hunters does she feel that infringes on her books because the word Hunter is in the title. What a waste of time and money actually it feels like she is doing this for the publicity. If her fans tipped her off to thinking their stories are so alike I wonder if Ms. Kenyon bothered to read Ms. Clare’s books for herself. Then she could have saved time and money and wasting the courts time. Her fans need to read more books then they would see how widespread the duplication of so many theme’s are.

  2. Interesting summary of this issue and I think you are the first writer I have seen who has addressed the issue of the different methods and wider audiences fan fiction gets nowadays. I find the blurred boundaries of it all to be quite concerning. I used to briefly write fan fiction about 15 years ago and never saw it as anything more than writing practice for my own self-interest. If other people liked it, that was a bonus, plus you got plenty of helpful critiquing. Fan-fiction writers (and Claire is a prime example) who later go on to publish their fan fiction as original works is anathema to me and I’m amazed there has not been more contention about this. It will be very interesting to see how this case pans out.

  3. Some good points are made here, but this goes beyond “some things are vaguely similar because generic storytelling”. The damn things were so similar, they slapped Clare’s logo on Kenyon’s books and had to destroy about 20,000 copies before they went out to market. Even the publishers were confused. There’s also a full rundown of the similarities in character, setting, and plot here: http://www.courtneymilan.com/cc-complaint/1-3.pdf

    At this point, it’s she said/she said. It’s just up to which side has more proof. Looking at both series, I can’t help but notice that Clare has effectively packaged her books for mass consumption/insecure teenager appeal, much like Twilight. She made Shadowhunters about a Super Speshul blank slate so she can make bank in film/television rights.

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