Sexy supernatural men falling in love with and protecting attractive young heroines, and the world, collide as NYT romance bestseller Sherrilyn Kenyon has sued YA bestseller Cassandra Clare for allegedly plagiarizing her hit Dark-Hunter series. Kenyon started writing the Dark-Hunter books in 1998, and has been releasing bestselling novels within that universe consistently ever since. Clare’s first Shadowhunters book, City of Bones, came out in 2007. Both series focus on “elite” warriors that protect the “human world” from an unseen paranormal threat, stopping the enslavement of humanity. Both introduce this concept through a heroine who does not know she is one of these warriors until saved by a handsome, gothic, tattooed, blond man who is a powerful warrior. However; where Kenyon’s books are decidedly adult, featuring some … steamy scenes, Clare’s YA (young adult) novels have reached a much broader audience. The Mortal Instruments: City of Bones was made into a movie in 2013, and although it was panned by critics and flopped at the box office, a TV show, “Shadowhunters: The Mortal Instruments,” premiered on ABC Family in January of 2016. Apparently this was the last straw, and on February 5, 2016, Kenyon sued Clare for trademark and copyright infringement based on the similarities between the Dark-Hunter and Shadowhunters names and stories.
A juicy tidbit in this story is that this is not the first time Clare has been accused of plagiarism. Cassandra Clare got her start writing popular Harry Potter fanfiction in 2000, specifically, the epic “Draco Trilogy,” which she has since taken down. In her fanfiction, Clare used to play a “game” with her readers where she would quote popular TV shows and movies without attributing it in the text, and then the readers could “spot the quote.” A dubious practice, but not particularly damning, especially considering her (sometimes disputed) attempts to credit the quotes. Moreover, in 2001, a reader noticed that an entire chapter of Clare’s trilogy, in terms of action sequences, descriptions, and dialog was similar to The Hidden Land, an out of print novel by Pamela Dean. After Clare failed to respond to moderator emails and “fix” the alleged copying, she was banned from FanFiction.net for plagiarism. The whole scenario caused a lot of controversy, and, believe it or not, is still frequently discussed in the fan community – you only need to google “Cassandra Clare Plagiarism” to see a host of blogs and articles passionately discussing it.
She looked down, coyly, powerless under the fierce fire in his eyes. Unable to bear the tension, she reached out and tenderly grasped . . . THE COMPLAINT
The 29-page complaint filed in the Middle District of Tennessee alleges copyright infringement, trademark infringement, false advertising, unfair competition, and trade dress infringement based on Clare’s books, movie, television show, and all related merchandise. The complaint also asks for several injunctions, impounding of infringing materials, and compensatory damages and lost profits. Clearly, Kenyon is out for blood.
Kenyon alleges that in 2006, several of her fans alerted her that Clare’s book (City of Bones) was going to use Kenyon’s Dark-Hunter Marks (Reg. Nos. 30/84,949 & 30/82,141 for Dark-Hunter; Reg. No. 41/18,624 for Were-Hunter; Reg. No. 41/18,626 for Dream-Hunter; and several related applications). Allegedly, after Kenyon contacted Clare, the term “dark-hunter” was replaced with “shadowhunters,” and the title of the upcoming book was changed to remove all reference to “hunters.” Kenyon alleges that despite her “continuing protests and continuous assurances” from Clare and her publisher that they wouldn’t expand the use of “shadowhunters” or adopt it as a trademark, Clare has done just that. According to the complaint, Clare’s use of “shadowhunter” has evolved from a description of her protagonist, to a tag line on the cover of her books, and is now the focus of a “complete rebranding” that is confusingly similar with the Dark-Hunter series.
Kenyon claims that the series are so similar that Clare’s publisher “mistakenly printed 100,000 copies of a Shadowhunters book referencing the Dark-Hunter Mark on the cover” and that the publisher had to destroy “tens of thousands” of these copies after Kenyon wrote to complain, although thousands were still sold. In fact, Kenyon claims that Clare’s books “did not receive significant recognition until after CLARE’s publisher misbranded one of [her] novels” with the Dark-Hunter mark. Kenyon also alleges that Clare’s book covers and promotion materials copy the style of her Dark-Hunter series, claiming that the Shadowhunters symbol is merely a simplified version of the Dark-Hunter one.
The complaint includes several exhibits, such as this one listing literary similarities between the series, mainly through charts. The charts directly compare five “scene similarities” and 15 characters in terms of physical descriptions, character arcs, and plot points. Of course, without reading both novels it would be difficult for anyone to say whether there is probative similarity; however, including these exhibits could strengthen Kenyon’s case and help overcome a motion to dismiss.
Since the suit was filed, Clare’s attorney reports that Clare was “surprised and disappointed that Ms. Kenyon would file this baseless lawsuit, a decade after the debut of [Clare’s] books.” Clare claims that there were never any agreements between Kenyon, Clare, or Clare’s publisher about using “shadowhunters” and that Kenyon’s lawsuit “rests on a basic misunderstanding of copyright law and [Clare’s] totally original work.” Clare’s attorney also emphasized that “There is little chance of anyone confusing [Clare’s] young adult themes and orientation with the sometimes very adult storylines in Ms. Kenyon’s books.”
Everything was a fight between them, but it was that passion that made it incredible when they finally embraced . . . THE CLAIMS
Trademarks and Trade dress
Trademark law exists to (1) protect consumers, (2) protect the goodwill of a product by indicating the source and its reputation for quality and (3) to stop the unfair actions of others. Thus trademarks must identify the source of goods and services and distinguish it from others, and represent the goodwill associated with that product or service. Trade dress, a facet of trademark law, focuses on the total image of a product, generally its packaging or labeling. This is why Kenyon is attacking both the word “Shadowhunters” and the packaging of the books, movie, and TV show.
Kenyon’s trademark, trade dress, false advertising, and unfair competition claims all boil down to the same basic argument: “Shadowhunters,” the brand, is confusingly similar to Kenyon’s Dark‑Hunter trademark, and the Shadowhunters books, movie, TV show, and merchandise is also marketed in an artistic style similar to how Kenyon markets her books and merchandise. These similarities falsely give consumers the impression that Kenyon is involved with the Shadowhunters series, when in reality she is not. This is unfair to consumers, who may pick up a Shadowhunters novel expecting to get Kenyon, and potentially harmful to Kenyon in that she may lose existing or potential consumers because of the mix-up.
However, Kenyon may have ruined at least one of her trademark claims before this case even gets off the ground. In her complaint, Kenyon states that she’s known about Clare’s use of “shadowhunters” since 2006, and does not seem to have any written agreement limiting Clare’s use of the term. Laches is a delay or passing off in relation to protection of the owner’s trademark rights. Generally, a successful laches claim requires (1) Kenyon’s knowledge of Clare’s use of the mark; (2) inexcusable delay by Kenyon in protecting her rights; and (3) detrimental reliance by Clare based on Kenyon’s delay. However; in ISWest.com v. ISPWest.com the Ninth Circuit heightened this standard to prevail on a laches defense by adding several more factors including:
- The strength and value of the Dark‑Hunter mark;
- Kenyon’s diligence in enforcing her mark;
- Harm to Kenyon (the senior user) if relief is denied;
- Good faith ignorance by Clare (the junior user);
- Competition in the marketplace between Kenyon and Clare; and
- The extent of harm suffered by Clare because of Kenyon’s delay – AKA prejudice to Clare.
A classic example of prejudice would be extensive advertising by Clare or substantial investment in the product and name – and considering the popularity of Clare’s books, her movie, and the new TV show, this could be a real hurdle for Kenyon. Federal courts tend to look to state laws on deceptive trade practices when determining the length of time necessary for finding laches, generally basing it on the limitations period set by that statute.
Laches may be defeated by the doctrine of inevitable confusion, arguing that there is such a high level of confusion between Dark‑Hunter and Shadowhunters that it is a certainty that consumers will be confused. Then, the court will look at consumer protection principles rather than the actions of Kenyon, the senior user. If Clare argues laches she will probably also argue acquiescence, wherein the senior user (Kenyon) made an affirmative statement that the junior user (Clare) may use the mark, or knowing about the infringement, the senior user does nothing to stop it. Either way, ten years is a long time to know about a problematic mark and not definitively solve the issue, and it may be too much for Kenyon to overcome.
A successful copyright infringement claim requires showing ownership of the claimed elements (an original work of authorship) and actionable copying. Actionable copying can be shown either through illicit copying, relying on substantial similarities in protectable materials, or actual copying, AKA plagiarism. Actual copying can be shown either through direct evidence or circumstantial evidence, which relies on access to the work and probative similarity that makes independent creation unlikely.
Clare has a pair of strong arguments she can use, such as (1) the “Dark‑Hunter” concept is not original enough to warrant copyright protection and (2) her work is not substantially similar to Kenyon’s because she created it independently. Paranormal fantasy is a hugely popular literary genre, and to pick a noun and then add hunter to it is not exactly an inspired creative leap; moreover, young heroines being swept away by handsome men and helping to protect the world is also a common theme. But, as they say, the devil is in the details, and if Clare copied details unique to Kenyon’s writings there may be an issue, particularly since it is undeniable that Clare had access to Kenyon’s bestselling books.
Regardless of what you think about Cassandra Clare or Sherrilyn Kenyon’s work, you have to admit – what better time for a duel between romance authors than Valentine’s day?