A Feud in Wolf-Kink Erotica Raises a Deep Legal Question

Addison Cain was dwelling in Kyoto, volunteering at a shrine and finding out indigenous Japanese faith. She was speculated to be engaged on a scholarly ebook about her analysis, however began writing intensely erotic Batman fan fiction as a substitute.

It occurred nearly by chance. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., below a totally different title — was three years out of school, alone overseas with a lot of time on her arms. Her command of Japanese was halting, and English titles in bookstores had been wildly costly. So Ms. Cain began studying issues she may discover at no cost on-line, and shortly found fanfic — tales by amateurs that borrow characters and plots from established pop-cultural franchises.

Ms. Cain started devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She determined to put in writing a few of her personal, that includes Batman’s nemesis Bane as a attractive antihero, and posted them at no cost on-line. She rapidly developed a fan base, changing into one thing of a star in her sub-subgenre.

A few years later, she was dwelling in Arlington, Va., and dealing as a bartender when she started to marvel if she may flip her interest into a enterprise. Her husband and oldsters discouraged her from pursuing one thing so impractical. Agents had been equally dismissive, rejecting or ignoring Ms. Cain’s queries for greater than a 12 months. Then, a fellow author helped Ms. Cain ship a manuscript to Blushing Books, a small publishing home in Charlottesville. An editor learn it in a single day and despatched her a contract the subsequent day.

In the spring of 2016, she revealed “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth the place most of humanity has died from a plague and survivors dwell below a dome, divided into a wolfpack-like hierarchy of dominant Alphas, impartial Betas and submissive Omegas. A highly effective, brutish Alpha named Shepherd takes an Omega lady named Claire captive, they usually interact in tough, wolfish intercourse.

Ms. Cain’s followers posted practically 100 optimistic critiques on Amazon, sufficient to get her some visibility. “Unapologetically raw and deliciously filthy,” learn one glowing blurb. The debut was a hit. She rushed out a number of extra titles, and the sequence grossed some $370,000, in keeping with her writer.

For the subsequent two years, Ms. Cain revealed at breakneck pace, producing a novel each few months by repurposing her older fan fiction, conserving her books in the algorithmic candy spot of Amazon’s new releases and turning herself into a recognizable model. “Dip your toes into the erotica pool,” she stated on a 2016 sci-fi and fantasy podcast. “There’s nothing to do here but make money.”

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy author with the pen title Zoey Ellis, who had revealed an erotic fantasy sequence with a premise that sounded awfully acquainted. It featured an Alpha and Omega couple, and many lupine intercourse. The extra Ms. Cain discovered about “Myth of Omega” and its first installment, “Crave to Conquer,” the extra outraged she turned. In each books, Alpha males are overpowered by the scent of Omega heroines and take them hostage. In each books, the ladies try to fail to suppress their pheromones and provides in to the urge to mate. In each books, the sniff, purr and growl; nest in den-like enclosures; neck-bite to go away “claim” marks; and expertise one thing known as “knotting,” involving a peculiar characteristic of the wolf phallus.

Ms. Cain urged Blushing Books to do one thing. The writer despatched copyright violation notices to greater than half a dozen on-line retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that had been “almost identical to Addison Cain’s book.” Most of the retailers, together with Barnes & Noble, iTunes, Apple and Google Play, eliminated Ms. Ellis’s work instantly. Ms. Cain’s readers flocked to her protection. “This is a rip off of Addison Cain,” one irate reader wrote on Goodreads. “So disappointed in this author and I hope Mrs. Cain seeks legal charges against you for stealing her work! Shame on you!”

It’s exhausting to think about that two writers may independently create such bizarrely particular fantasy eventualities. As it seems, neither of them did. Both writers constructed their plots with frequent parts from a booming, fan-generated physique of literature known as the Omegaverse.

The dispute between Ms. Cain and Ms. Ellis is a kink-laden microcosm of techniques at play all through the fanfic business. As the style commercializes, authors aggressively defend their livelihoods, typically utilizing a 1998 legislation, the Digital Millennium Copyright Act, to get on-line retailers to take away rivals’ books. When making a declare, a creator should have a “good faith belief” that her possession of the work in query has been infringed.

But what does that imply when the final word supply materials is a crowdsourced collective? The query has members of the Omegaverse group selecting sides between Ms. Cain and Ms. Ellis — as will a federal decide in Virginia, who’s contemplating whether or not the allegations, and the implications, benefit a payout of greater than a million .

To untangle the Omegaverse combat, it helps to know its origins in a parallel literary universe — the huge, unruly, numerous, exuberant and sometimes pornographic world of fan fiction.

After getting its begin many years in the past in “Star Trek” zines, fanfic mushroomed when the web made it simple for particularly devoted shoppers of popular culture to search out and create tales for each other. There are actually subgenres upon subgenres, from “slash” (the place two male characters pair up romantically, reminiscent of Sherlock Holmes and Dr. Watson), to odder fare like “mundane AU” (an alternate universe the place magical characters dwell in the actual world — e.g., Harry Potter goes to a common boarding college and has regular teen issues).

While some conventional authors have derided fan fiction writers as inventive parasites, there isn’t actually any option to cease them. Such works are authorized so long as writers submit them at no cost and don’t attempt to promote tales based mostly on copyrighted materials.

As more fan fiction writers cross over into commercial publishing, turf wars have erupted. “Fan fiction made authors and publishers realize there was a thriving market for this stuff,” said Rebecca Tushnet, a copyright expert at Harvard Law School. “There’s much more of it, so there’s more opportunity for conflict.”

The premise was wildly popular, and tropes were rapidly adopted by writers in other fandoms, including NBC’s “Hannibal” and MTV’s “Teen Wolf.” The sprawling body of work that followed came to be known as the Omegaverse, with its own rules, plot elements and terminology.

Some Omegaverse stories involve lycanthropes (werewolves), vampires, shape-shifters, dragons, space pirates, others feature regular humans. But virtually all Omegaverse couples engage in wolflike behavior. Alphas “rut” and Omegas go through heat cycles, releasing pheromones that drive Alphas into a lusty frenzy. One particular physiological quirk that’s ubiquitous in Omegaverse stories, called knotting, comes from a real feature of wolves’ penises, which swell during intercourse, causing the mating pair to remain physically bound to increase the chance of insemination.

The appetite for such tales is large and growing. In the past decade, more than 70,000 stories set in the Omegaverse have been published on the fan fiction site Archive of Our Own. As it became more popular, the Omegaverse transcended individual fandoms and became an established genre on its own.

Writers began publishing Omegaverse stories with original characters and settings, and authors started to publish them for profit. On Amazon, there are hundreds of novels for sale, including titles like “Pregnant Rock Star Omega,” “Wolf Spirit: A Reverse Harem Omegaverse Romance” and “Some Bunny to Love: An M/M MPreg Shifter Romance,” an improbable tale involving an Alpha male who can transform into a rabbit.

This was the thriving commercial backdrop to Ms. Cain’s allegation that Ms. Ellis stole her material. Ms. Ellis thought that the claim was absurd — and was prepared to say so in court.

One day last spring, Ms. Ellis met me for coffee at a hotel near Paddington Station. She doesn’t seem like someone who writes dark, edgy, sometimes violent erotica. She’s young, cheerful, and works in education in London, which is one of the reasons she declines to publish under her real name. Most days, she gets up at four in the morning to write, then heads to the school where she works. On her Amazon author page, she describes herself as a “cat mama” who loves “sexual tension that jumps off the page.”

Ms. Ellis said she got into fan fiction in 2006. She read stories set in the Harry Potter universe at first, then moved on to other fandoms, including one for the BBC’s “Sherlock,” starring Benedict Cumberbatch, that introduced her to the Omegaverse. The genre was unlike anything else she’d encountered. She began dabbling in her own original writing, and in late 2017 began working on the “Myth of Omega” series.

Set in a medieval fantasy world, the first novel, “Crave to Conquer,” features an Alpha emperor who becomes obsessed with a beguiling undercover Omega spy named Cailyn. She resists his advances, using magic to mask the scent of her pheromones, until she is overcome by the biological imperative. To appeal to other Omegaverse and dark romance fans, Ms. Ellis built the narrative around standard genre elements — the wolflike tics and mating, and an edgy dominant-submissive dynamic. (In fanfic terminology, some of the sexual scenarios would be labeled “dub-con,” or “dubious consent.”)

“You have to make sure you use the tropes of Omegaverse in order to be recognized by fans of the genre,” Ms. Ellis said. “Crave to Conquer” and its sequel, “Crave to Capture,” were published in early 2018 by Quill Ink Books, a London company she founded. Readers gave the series glowing reviews on Goodreads and Amazon, calling it “sensational new Omegaverse!” and the “best Omega yet.”

In late April 2018, Ms. Ellis got an email from a reader who had ordered one of her books from Barnes & Noble, then learned that it wasn’t available anymore. She soon discovered that all of her Omegaverse books had disappeared from major stores, all because of a claim of copyright infringement from Ms. Cain and her publisher. Ms. Ellis found it bewildering.

“I couldn’t see how a story I had written using recognized tropes from a shared universe, to tell a story that was quite different than anything else out there commercially, could be targeted in that way,” Ms. Ellis said. “There are moments and scenarios that seem almost identical, but it’s a trope that can be found in hundreds of stories.”

A lawyer for Ms. Ellis and Quill filed counter-notices to websites that had removed her books. Some took weeks to restore the titles; others took months. There was no way to recover the lost sales. “As a new author, I was building momentum, and that momentum was lost,” Ms. Ellis said. And she worried that the “plagiarist” label would permanently mar her reputation.

Ms. Ellis decided to sue. “Everything would have been in question, my integrity would have been questioned, my ability to write and tell stories — all of that would have been under threat if I didn’t challenge these claims,” she said.

In the fall of 2018, Quill Ink filed against Blushing Books and Ms. Cain in federal court in Oklahoma, where Ms. Ellis’s digital distributor is based, seeking $1.25 million in damages for defamation, interfering with Ms. Ellis’s career, and for filing false copyright infringement notices. In the suit, Quill’s lawyers argued that “no one owns the ‘omegaverse’ or the various tropes that define ‘omegaverse.’”

Ms. Ellis’s lawyers thought they had a strong position. But they struggled to find a prior case that addressed whether fan fiction tropes could be protected by copyright.

“We were looking at cases to see if the courts had ever dealt with anything like this before, dealing with the emergence of this new literary genre,” said Gideon Lincecum, a lawyer who represents Quill Ink and Ms. Ellis. “We found there weren’t any.”

The intense rivalry isn’t limited to writers in the Omegaverse. As online publishing has gotten more competitive — there are millions of e-books available on Amazon, up from 600,000 in 2014 — some genre authors have grown aggressive in their efforts to dominate their literary niche.

Last year, an author who writes in a popular romance subgenre called “Reverse Harem High School Bully Romance” — a trope in which a teenage female character has several aggressive male suitors — claimed that another author had copied her books, and demanded that she remove them. The accused author briefly removed her work from Amazon, but restored them after consulting a lawyer.

Like Cockygate, the Omegaverse case reveals how easily intellectual property law can be weaponized by authors seeking to take down their rivals. Under the Digital Millennium Copyright Act, individuals or companies can send takedown notices to retailers as long as they have a good faith belief that their work has been infringed. Retailers are protected from being named in related litigation if they remove the material, and many websites comply with D.M.C.A. notices without even investigating the claims. Legal experts say the system is easily abused.

“We’ve seen lots of examples of people sending D.M.C.A. notices when it’s pretty obvious that they didn’t think there was copyright infringement,” said Mitch Stoltz, a senior staff attorney for the Electronic Frontier Foundation, a nonprofit digital rights group. “There’s not much accountability.”

Amazon agrees that it’s a problem. As the rise of self-publishing has produced a flood of digital content, authors frequently use copyright notices to squash their competition. During a public hearing hosted by the U.S. Copyright Office in 2016, Stephen Worth, Amazon’s associate general counsel, said that fraudulent copyright complaints by authors accounted for “more than half of the takedown notices” the company receives. “We need to fix the problem of notices that are used improperly to attack others’ works maliciously,” he said.

In the Omegaverse case, Ms. Cain’s claim of copyright infringement against Ms. Ellis has struck some as especially tenuous. “They are not very original, either one of them,” said Kristina Busse, the author of “Framing Fan Fiction,” who has written academic essays about the Omegaverse and submitted expert witness testimony for the case on Ms. Ellis’s behalf. “They both stole from fandom or existing tropes in the wild.”

Intellectual property experts say copyright protection applies to the expression of ideas through particular phrasing, but doesn’t cover literary tropes and standard plot points. The writer of a crime novel, for example, can’t copyright the notion of a body discovered in the first act and the killer getting caught in the end.

But the Omegaverse case is likely the first time these legal arguments have been invoked in a dispute over works that grew out of a corpus of fan fiction generated informally by thousands of writers.

“In fan fiction, the sharing of tropes and story parts and plot lines is free flowing,” said Anne Jamison, a fanfic expert and associate professor of English at the University of Utah, who was skeptical of the notion that Omegaverse tropes could be copyrighted. “There’s a blurry line between what is specifically yours and what is somebody else’s.”

Ms. Ellis wasn’t the first Omegaverse figure Ms. Cain accused of plagiarism. In March 2016, she wrote a Facebook post charging that another author, who wrote under the name the Dragon’s Maiden, had copied at least 15 plot points from her novel “Born to Be Bred.” In a message to Ms. Cain, which Ms. Cain posted on Facebook, the Dragon’s Maiden denied she had stolen anything, and argued that “there are some similarities, but I honestly believe that they don’t go beyond common Lycan traits or actual wolf behavior.”

But after being called a plagiarist in online comments, the Dragon’s Maiden, who lives in Wisconsin, removed her story from the internet. “Her fans came after me, even though our stories, other than being Omegaverse, were nothing alike,” she said in an interview.

Two years later, Ms. Cain and her publisher filed D.M.C.A. takedown requests against Ms. Ellis’s first two “Myth of Omega” books. Ms. Cain also asked her publisher to file an infringement notice against an Ellis novel that hadn’t even been released yet. “Book three needs to come down too. I don’t want her to make any more money off this series,” Ms. Cain wrote to Blushing Books in April, according to a court filing.

She also wanted to stop Ms. Ellis from publishing a new spinoff series of Omegaverse books, and emailed her publisher, asking what they could do. Bethany Burke, the publisher of Blushing Books, was skeptical: “The problem is — as you say — you do not own Omegaverse,” she wrote. “I don’t know what mechanism we can use to shut her down completely as an author, unless YOU want to try to trademark Omegaverse. (Which we might be able to get.)”

That message, produced in discovery, probably won’t help Ms. Cain’s chances in court. She has not always been her own best advocate. In a deposition last year, Ms. Cain said that the overlap between her books and Ms. Ellis’s series went beyond the Omegaverse elements. “It has nothing to do with trope, it has nothing to do with Omegaverse, it has to do with plot similarities,” she said. But when she was asked to cite specific examples, she said she couldn’t recall any, adding that she hadn’t done a close comparison because it was too upsetting. “It was hard for me to read them side by side, honestly, because I felt very violated,” she said.

Ms. Cain, who now lives in Virginia with her husband and 2-year-old daughter, said through her lawyer over email that she disagrees with the claims brought against her, but declined to discuss specific allegations, citing ongoing litigation.

The biggest development in the case so far is that Blushing Books has left Ms. Cain to contest the matter alone. Last year, the publisher conceded that no plagiarism or copyright infringement had occurred, and a judgment was entered against the company, which paid undisclosed monetary damages to Quill and Ms. Ellis. (Ms. Cain is now self-publishing.)

Ms. Ellis and her publishing company filed a new civil suit against Ms. Cain in her home state of Virginia, arguing that she maliciously directed her publisher to send false copyright infringement notices to retailers. Ms. Cain’s lawyers have denied the claims, and have lined up authors, bloggers and readers as witnesses.

If the judge, or a jury, finds Ms. Cain in the wrong, the case would send a message to overzealous genre writers that the Digital Millennium Copyright Act is not to be abused. By the same token, authors of genuinely original stories might find they have one fewer legal lever to protect their work. And a victory by Ms. Cain could encourage a free-for-all, emboldening authors to knock back competitors and formally assert their ownership of swaths of the fan fiction universe and common tropes in genre fiction.

Discovery is ongoing, and a pretrial conference before a judge is scheduled for June. In the meantime, the Omegaverse continues to thrive. This year, more than 200 new books from the genre have been published on Amazon.

The latest batch draws on virtually every genre and trope imaginable: paranormal shifter romances, paranormal Mpreg romances, reverse harem romances, sci-fi alien warrior romances. There are fantastical Alpha-Omega stories featuring witches, unicorns, dragons, vampires, wolf-shifters, bear-shifters, and wolf-shifters versus bear-shifters. There are comparatively pedestrian Omegaverse romances about celebrity chefs, dentists, frat boys, bakers, bodyguards and billionaires. In a teeming multiverse of stories, the tropes are still evolving, inexhaustible.

Kitty Bennett and Susan Beachy contributed research.

Source link Nytimes.com

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