“Some has stolen my story!” is something I hear frequently from new authors who obsess over whether to submit to literary contests before a book is published. Or they obsess over whether to submit to Netgalley or send ARCs to potential reviewers. If those decisions aren’t enough, they also worry about all the pirate sites that have their book and the money they are losing because of those downloads. Less frequently, but still enough to take notice, are authors who find a book selling better than theirs that looks and feels really close to one they’ve written. Obviously, it must have been stolen. In my experience, 99% of the time a book is not stolen in any shape or form. What appears to be “stolen” is a plot, or theme, or an idea. None of those aspects of a written work are protected under copyright.
Recently this question of if a new author should worry about her book being stolen, and how to protect herself, came up in a community forum at the Author’s Guild. Much of what I’ve written below is expanded from my response to the author in the forum. I offered a true case I was involved in analyzing many years ago. When teaching about licensing and copyright protection, I often use this true story to show how complex copyright protection is; and to emphasize that what makes a book unique is not the title, the themes, the plot, or the sequence of events. It is the nuances of how you express yourself in the story (your voice and style); and the specific details you weave into your characters and their actions as they move through the plot and themes.
Case Study Where the Alleged Infringement Was Not a Direct Copy of Words
When most of us think of plagiarism, we think of someone who has copied someone’s else’s work verbatim. This is the easiest way to spot plagiarism and to go after an infringer. There are many cases when someone was sued because they lifted an entire chapter verbatim (changing only the character names) and placed it in their own book. There are many cases where the infringer attempted to cover their tracts by changing many things (names, locations, timelines, color of characters hair, height, even gender) but keeping the words pretty much the same. Those are also easily plagiarism and easy to sue the infringer. However, the difficulty comes when the words are NOT the same, but it “appears” that everything else important to the writer is the same. It is difficult because many writers–particularly new writers–believe that their theme, plot, characters–are unique and when they see a book that is similar they jump to the conclusion that someone stole their work.
This situation occurred fifteen years ago, when I was president of the Portland, Oregon Chapter of Romance Writers of America. I want to share it as a case study because I think it is indicative of the many allegations authors believe prove someone stole their story. Yet, copyright law does not protect them in this belief.
One of the chapter members (I’ll name her Sally) claimed someone else in another chapter (in the midwest–let’s call her Mindy) had “stolen” her book. She learned about it when Mindy got a contract with a small publisher and it was released with some acclaim and had decent initial sales. When Sally read the description of the book she thought it sounded very much like her book. She had participated in literary contest where the unpublished manuscript is sent for judging and the finalist manuscripts are judged by agents and editors. Many romance writers do this when they are starting out hoping for an opportunity to get a traditional deal.
After Sally purchased and read Mindy’s book she was certain that Mindy had somehow had access to her unpublished manuscript and that is how she was able to steal her story. She surmised that because in Mindy’s author bio she revealed she was a member of this midwest RWA Chapter. After reading Mindy’s book, Sally prepared an outline of the plot to prove all the points where things were exactly the same as in her book. She was not claiming that text was lifted verbatim from her book (that would have been easy to prove infringement). The claim was that she had stolen the “expression” of the ideas (a central key in copyright protection) by having many of the same characters (though with different names), the same overarching plot, many of the same turning points, the same climax, and the same denouement that led to the happily-ever-after marriage.
My role was to read both books and advise her about moving forward in asking RWA to sanction Mindy for plagiarism. What do I look at when someone makes that kind of allegation? There were three points I considered in my analysis: originality, access, and was some or all of it copied AND protected by copyright law? Note: I am not an attorney and do not play one on TV. However, I have studied a lot and researched a lot of copyright issues. My role was to do the best I could to analyze these aspects and advise her whether to move forward to RWA (who has an attorney) and/or to engage her own IP attorney for advice on filing a lawsuit which certainly costs money.
1. Originality. A statement that her work was original (meaning it was written and copyrighted prior to Mindy’s work). Sally’s work had been completed two years prior to Mindy’s work and had been making the rounds of contests over that entire time. So I had to assume that Sally did not copy Mindy. Her work was original.
2. Access. A statement that the person had access to her story. The law requires proof of, or likelihood of, access–particularly when it is not a verbatim infringement case where the words are exactly the same in many areas of the book. Because Sally had sent her manuscript to the midwest RWA chapter contest, she assumed that Mindy was likely one of many people who judged the manuscript in early rounds and then recreated it with different character names, place names, and ages. In RWA Chapter contests, members of chapters are often the initial judges determining finalists. Finalists are then judged by industry people (agents, editors, award panels, etc.) In this case, I could not prove or disprove that Mindy had access to her manuscript. If it went to court or an attorney looked at that, it could be a stumbling block. I don’t think one has to Mindy was a judge–only that she had a likelihood of gaining access to the manuscript as a member of that chapter.
3. Was it copied? If some part of it was copied, could it be protected by copyright?
This really is the crux of the matter and where an infringement case usually falls apart when the first two steps are met or close to being met. All books consist of two important parts: the idea(s) and the execution. The law only protects execution.
Ideas are not protected. In fact, all of literature consists of the remixing of existing ideas in new and interesting ways. Entire genres are made up of certain ideas and themes (tropes) that are an important part of marketing books. It is the ideas and themes that become searchable categories and keywords–coming of age novel, friends to lovers, death of parent gives motivation to protagonist, good vs. evil, power and corruption, and many more. Any one of these themes could be a part of any novel–no matter the genre. In the romance genre there is a series of tropes that are popular and appear in some way in most of the genre. Two people meet in the story and fall in love or lust–often early on. The characters then have problems or challenges that make their relationship difficult–sometimes making them give up on each other or lose trust for much of the story. Through a sequence of events, the couple is confronted with choices that make them realize the other person really is on their side or will protect them or is a good mate after all. Something happens at the climax (black moment) to seemingly make their love impossible (anger, accident, betrayal, possible death-bed scene, losing everything). The resolution is the couple realizing that, no matter how bad things were before, they really do need/love/trust each other and are willing to make it permanent. Thus the required happily-ever-after (HEA) of every romance novel.
NONE of what I just described in that sequence is copyrightable. General themes, motives, or sequences of events which could be judged as a common result from the choice of a setting or identical situation are not copyrightable. In other words, if my heroine is stuck in a barn and surrounded by police who will shoot if she doesn’t surrender, she has very limited choices. It is likely that any choice I would make, as a writer, to get her out of the situation is one of those “common results” given the setting. Even making the choice to somehow push a button and disappear through time-travel is a choice that has already been made in many books. Therefore, the theme, the plot, and even the character choices that can be naturally inferred based on genre–as in the description of what happens in a romance novel–can be freely borrowed and often are. Most of us create situations that reflect common human experiences. That is what helps the reader to empathize with the situation and the choices made.
Sally had presented an outline of her novel, with point-by-point descriptions of where the alleged infringing work was the same. I won’t describe the entire outline here but there were many similarities when you compared the two books. It was a romantic suspense novel that took place in a rural area. The heroine was running from trouble, and taken in by the hero on his ranch. A relationship develops over the winter. The couple suffers several setbacks, each matching similar circumstances in both books. These setbacks led to the climax where the house burns down because of a faulty fireplace flue. The hero loses everything, and the heroine almost dies. He blames himself for not fixing the fireplace earlier when he knew it needed to be checked. She doesn’t want to get back together because she has some permanent physical damage. After months visiting and going back and forth at the hospital they realize what is even more important than having a house or a perfect physical body is having each other. They are really in love, and over the final chapters they work out other problems of distrust, perceived betrayal, things each were wrong about the other, etc. Of course, they both live happily-ever-after.
Every bit of that plot matched both books, including the sequence of events. Yet NONE of it is protected by copyright law. In fact, I knew I had read that sequence in other novels, including some novels without romance like a buddy novel or a family saga. That is the reality of most literature. There really aren’t unique, new plots and themes. With the millions of books that have been produced over hundreds of years, those themes have been done again and again. Those are not copyrighted.
So what is copyright protected then, if it’s not word-for-word exactly? EXECUTION!
When copyright law looks at the EXECUTION of the plot, themes, settings, it is looking at more specific development of that plot and sequence. It is the vivid details of the character’s clothing, hair, features that stand out (e.g., pimples along the chin, a dark spot on the thigh from a childhood burn, a facial tick when the character is nervous). It is the character’s backstory that motivates them today. It is the way the character walks; the character’s mood (what she’s feeling, her present mental state) at each step in the plot sequence. It is the choices that are unusual and unexpected. For example, take the character of MacGyver. Because of PTSD around guns, he doesn’t carry a gun even though he is often in situations where it could be helpful and all other characters around him do carry a gun. Instead he relies on his abilities to get out of situations using his intelligence. That is a very unique character that still moves the plot along but unlike the expected brandishing of weapons and taking down the bad guys. Matt Buchman writes military thrillers writes about a high-functioning autistic woman who is the best NTSB crash investigator on the planet. Specific characteristics of autism are used in her actions, her socialization, the way she approaches problem-solving. That is protected “execution” in copyright, vivid details about the character that are specific to him and, should someone else copy those details (even with different words or setting or plot) he would have a reason to pursue infringement.
The dialog a character uses is also critical. Not necessarily WHAT they say (though it can be protected if it’s word for word), but how they say it or what the character does as they say it–a unique quirk which reveals an accent or a particular way of speaking. For example, every time the character disagrees with something that is said by another character she grips her hands together tightly and presses her lips shut so she doesn’t shout out something that will make the situation worse. That is unique to that character, and perhaps unexpected if she is normally someone who always says what’s on her mind. But with this one person she doesn’t. Specificity not only in actions but in relationships are a part of execution.
The levels of conflict in relation to the situation that is unique or unexpected can be protected. For example, did the house burn down because the heroine has a habit of placing candles around the living room and then dancing among them as a type of meditation? This one night she is inebriated and falls asleep. A candle burns through the paper plate and catches the drapes on fire. That is very specific and unique. What is expected is an electrical fire, or a gas explosion, or an arsonist. The more specific the conflict the description the more it is protected and one can prove that level of conflict or climax was uniquely copied. What other characters say about your protagonist can be unique. As can setting (location, time, physical characteristics of a home or a park or a car, or social setting of an event).
In other words, significant character and plot development beyond the standard genre tropes. The author’s “expression” is what conveys specific insight into the life and world of the character that sets him/her/they apart from generic characters. The totality of the unique author’s expression of a scene, events, social standing within the story, levels of conflict beyond the obvious are all entitled to copyright protection. If that totality exists in another book, the author is more likely to be successful at claiming infringement.
The way I think about it is what readers identify as unique to the author’s writing voice/style. For example, though I write write in more than one genre (romance, women’s fiction, science fiction, and fantasy), my best fans could tell you which book is mine even if it didn’t have my name on it. Why? Because I have an approach to my characters, their feelings, the way they go about solving problems, that no one else has. When my characters solve a problem, the end result is one many people would get to eventually. However, the path my characters took to get there is specific to my voice, my way of looking at the world, my values, etc. So no one else writes it exactly the same way (unless they copy me). That is what is protected by copyright. The more you write what YOU want to write in the way YOU want to express it–instead of worrying about how everyone else does it–the more likely your execution is unique and protected by copyright.
What Happened With the Case?
In the end, I advised the chapter member that I did not see a case though she could certainly pursue it with RWA, if she still wanted to. And, if not satisfied engage an IP attorney which would require some outlay of money. The author didn’t like my answer. She did pursue it with RWA who came to the same conclusion as I did. She also didn’t like that answer. She was so sure we were wrong and just didn’t understand how unique her work was. She hired an IP attorney for about $500 to get an analysis. The attorney also told her she didn’t have a case. She finally gave up, but to this day she still believes it was stolen and that if she only had tens of thousands of dollars she would win the case.
A LOT of people think they’ve been the victim of plagiarism. After reading enough lawsuits and the findings over the years (even when celebrities sue), there are some wins but not often unless it is a close to verbatim section where the words are identical. Most often it ends with the judge making a statement something to the effect of the one in a recent Green v Harbach case (2018 I think) where two people wrote a story about baseball with similar premises, character types, and outcomes revealing themselves in the climax. The judge said: “not copyrightable abstract ideas, or, when understood in context, not actually similar.”
On the other hand, I remember a case in the late 1980’s where humorist and writer Art Buchwald sued Paramount Pictures, claiming they stole his script idea and turned it into the 1988 movie Coming to America starring Eddie Murphy. It was based on a film treatment (story treatment) which Buchwald submitted to Paramount with the hope that Eddie Murphy would play the lead role. In other words, it wasn’t an entire script but more of the characters, plot, sequence of events–but specific enough for Paramount to generate several scripts from the treatment. Buchwald won the lawsuit and was awarded damages, and then accepted a settlement from Paramount. So, it does happen. But that is one of the rare times I’ve heard of it from a story treatment instead of a completed manuscript or script.
What About Piracy? Certainly That is Copyright Infringement
Unfortunately, the digital age and the ability of people to put up and take done websites, and move content almost instantaneously has created the world of digital pirates. These pirates come in two types: 1) ones who actual do have your work; and 2) ones who pretend to have your work but don’t.
The ones who take your entire published work (either from a single copy they purchased or a copy they got through Netgalley or similar review sites) sell it at reduced cost or free and pocket the money themselves. Others will take the work and translate it to another language (Russian is the most popular for this, but there are players in almost every language) and either sell it or give it away as a free download. Others will create an anthology from several stolen short stories from multiple authors and claim all stories in the anthology are their own work. All of that is copyright infringement. The problem is tracking them down and fighting it. The servers are often not in the U.S. They are in countries which do not spend a lot of money or political capital tracking them down or forbidding it.
The other pirates, who are even more insidious, are those who claim to have your book do not. They only have the metadata (usually scraped from Amazon buy pages) . They create their own page with an image of your book, the description, and other details but offer it at a very reduced cost or free. It’s 100% a scam because they don’t have the book to deliver. Instead they are mining user information from emails to credit cards or demographic data to sell to advertisers. Because they don’t actually have your book they are not infringing on your copyright. The fact they have the cover and display it without permission may be an infringement claim for your cover designer’s image (or you if you design your own covers). But like the first type of pirate, they are impossible to stop. They simply shut down a site, open a new one and move all the content when too many people are going after them.
In the first three to four years of my career, after I had five or six books out, I spent a good bit of time and money trying to stop this piracy. I paid a service to search the web for potential copies of my book, having them send takedown notices everywhere. It was not unusual to find 200+ sites EVERY day. Eventually, most of those companies who did this automated search and defend action, at a reasonable price, went out of business. They primarily relied on Google to stop showing the URL because they couldn’t really contact sites outside the U.S. and get them to do anything. But Google decided they no longer wanted to be the gatekeeper for take-down notices or the arbiter of if the notices were legitimate or the websites in question really had the books. That was the end of those companies doing the work. At 200+ findings each day it could easily become a full time job just to keep track of it.
I used to really worry about all the money I was potentially losing by these pirates. I questioned whether the reason I wasn’t moving out of the midlist to better sales was because no one had a reason to pay for my books. It was a no-win situation. I couldn’t keep up with the notices, and I couldn’t afford to let my time and emotional capital be eaten by something I had no control over. In 2011, I saw Neil Gaiman’s response to how he’s chosen to deal with piracy. You may not agree with it. But, for me, I’ve embraced it instead of worrying about it and being constantly unsuccessful at putting a dent in stopping it. I don’t know if it truly helps gain more readers, as he claims his findings showed. After all, he is so popular already it may work for him but not the rest of us. However, I’ve gained some peace around giving up the pursuit of pirates. The one thing he says early on, is that he used to believe if you didn’t aggressively protect your copyright you lose it. But it isn’t true.
I hear that statement from many authors, some of which are bestsellers, who are continuing to spend time, energy, and money pursuing pirate sites. So I checked with an IP attorney just to hear it for myself. I shared a statement I’ve often heard from authors. That is that if you don’t aggressively send take down notices, after so many free downloads the book automatically becomes part of the public domain.
The attorney said: “You do not lose it. It does not become a public domain book.” She said it is a myth many authors believe, probably because they equate copyright protection with trademark protection. Trademarks do have to be defended. However, Copyrights do not. You do not lose your copyright even if you knowingly let it be infringed. Even if thousands of copies of your book are being downloaded for free by pirates and you don’t try to stop them, it doesn’t mean you have given up the right to license your copyright elsewhere or to sue the pirates or individuals for infringement at a later date. Copyright offers full protection for a set period of time for which it is valid and, unless you take some kind of action to specifically give up those rights, you can pursue infringement at any time during your life. And your heirs can pursue infringement at any time during the next 70 years after your death. This is the current protection term for all works after 1978. There are some exceptions for longer periods for certain types of works (e.g., work-for-hire), but in general it is your lifetime plus 70 years.