Saturday, 23 May 2020

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

And its not the legal question you're probably thinking of!

Full article in extended.

Full Article:

By Alexandra Alter
May 23, 2020
Updated 2:18 p.m. ET

Addison Cain was living in Kyoto, volunteering at a shrine and studying indigenous Japanese religion. She was supposed to be working on a scholarly book about her research, but started writing intensely erotic Batman fan fiction instead.

It happened almost by accident. It was 2012, and Ms. Cain — who grew up in Orange County, Calif., under a different name — was three years out of college, alone abroad with a lot of time on her hands. Her command of Japanese was halting, and English titles in bookstores were wildly expensive. So Ms. Cain started reading things she could find for free online, and soon discovered fanfic — stories by amateurs that borrow characters and plots from established pop-cultural franchises.

Ms. Cain began devouring works set in the world of Christopher Nolan’s “Dark Knight” trilogy. She decided to write some of her own, featuring Batman’s nemesis Bane as a sexy antihero, and posted them for free online. She quickly developed a fan base, becoming something of a star in her sub-subgenre.

A few years later, she was living in Arlington, Va., and working as a bartender when she began to wonder if she could turn her hobby into a business. Her husband and parents discouraged her from pursuing something so impractical. Agents were equally dismissive, rejecting or ignoring Ms. Cain’s queries for more than a year. Then, a fellow writer helped Ms. Cain send a manuscript to Blushing Books, a small publishing house in Charlottesville. An editor read it overnight and sent her a contract the next day.

In the spring of 2016, she published “Born to Be Bound,” an adaptation of her fanfic. The story takes place on a future earth where most of humanity has died from a plague and survivors live under a dome, divided into a wolfpack-like hierarchy of dominant Alphas, neutral Betas and submissive Omegas. A powerful, brutish Alpha named Shepherd takes an Omega woman named Claire captive, and they engage in rough, wolfish sex.

Ms. Cain’s fans posted nearly 100 positive reviews on Amazon, enough to get her some visibility. “Unapologetically raw and deliciously filthy,” read one glowing blurb. The debut was a hit. She rushed out several more titles, and the series grossed some $370,000, according to her publisher.

Then, in 2018, Ms. Cain heard about an up-and-coming fantasy writer with the pen name Zoey Ellis, who had published an erotic fantasy series with a premise that sounded awfully familiar. It featured an Alpha and Omega couple, and lots of lupine sex. The more Ms. Cain learned about “Myth of Omega” and its first installment, “Crave to Conquer,” the more outraged she became. In both books, Alpha men are overpowered by the scent of Omega heroines and take them hostage. In both books, the women try and fail to suppress their pheromones and give in to the urge to mate. In both books, the couples sniff, purr and growl; nest in den-like enclosures; neck-bite to leave “claim” marks; and experience something called “knotting,” involving a peculiar feature of the wolf phallus.

Ms. Cain urged Blushing Books to do something. The publisher sent copyright violation notices to more than half a dozen online retailers, alleging that Ms. Ellis’s story was “a copy” with scenes that were “almost identical to Addison Cain’s book.” Most of the outlets, including Barnes & Noble, iTunes, and Apple, removed Ms. Ellis’s work immediately. Ms. Cain’s readers flocked to her defense. “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 hard to imagine that two writers could independently create such bizarrely specific fantasy scenarios. As it turns out, neither of them did. Both writers built their plots with common elements from a booming, fan-generated body of literature called the Omegaverse.

The dispute between Ms. Cain and Ms. Ellis is a kink-laden microcosm of tactics at play throughout the fanfic industry. As the genre commercializes, authors aggressively defend their livelihoods, sometimes using a 1998 law, the Digital Millennium Copyright Act, to get online retailers to remove competitors’ books. When making a claim, a creator must have a “good faith belief” that her ownership of the work in question has been infringed.

But what does that mean when the ultimate source material is a crowdsourced collective? The question has members of the Omegaverse community choosing sides between Ms. Cain and Ms. Ellis — as will a federal judge in Virginia, who is considering whether the allegations, and the consequences, merit a payout of more than a million dollars.

Welcome to the Omegaverse, where men can get pregnant

To untangle the Omegaverse fight, it helps to understand its origins in a parallel literary universe — the vast, unruly, diverse, exuberant and often pornographic world of fan fiction.

After getting its start decades ago in “Star Trek” zines, fanfic mushroomed when the internet made it easy for especially dedicated consumers of pop culture to find and create stories for one another. There are now subgenres upon subgenres, from “slash” (where two male characters pair up romantically, such as Sherlock Holmes and Dr. Watson), to odder fare like “mundane AU” (an alternative universe where magical characters live in the real world — e.g., Harry Potter goes to a regular boarding school and has normal teen problems).

While some traditional authors have derided fan fiction writers as creative parasites, there isn’t really any way to stop them. Such works are legal as long as writers post them for free and don’t try to sell stories based on copyrighted material.

But too much money was at stake for the genre to remain amateur forever. E L James’s blockbuster series “Fifty Shades of Grey,” which sold more than 150 million copies, started as fanfic based on Stephenie Meyer’s “Twilight” vampire saga. By swapping out copyrighted characters for nominally original ones — a practice known as “filing off the serial numbers” — fanfic writers like Ms. James, Christina Lauren and the cheekily named Tara Sue Me have leapfrogged into for-profit publishing.

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 specific fanfic universe that spawned the Cain-Ellis dispute emerged about a decade ago, when devotees of the CW drama “Supernatural” began writing stories in which its two lead actors are lovers. One would be the dominant alpha male. The other man would be a feminized omega, often with the ability to become impregnated — a trope known as MPreg. Canine, and then lupine, sex stuff got mixed in.

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.

The ‘cat mama’ strikes back
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.”

‘Maliciously’ weaponizing the D.M.C.A.

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.

Other authors have tried to use trademarks to go after their rivals. Writers have attempted to trademark generic phrases like “dragon slayer” and even the word “dark.” In 2018, the self-published romance author Faleena Hopkins caused a scandal after she registered a trademark for the word “cocky,” and sent infringement notices to other romance authors who used the word in their titles. Amazon temporarily removed some books, including “Her Cocky Firefighters” and “Her Cocky Doctors.” After suing several people unsuccessfully, Ms. Hopkins backed down.

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.”

On May 21, the U.S. Copyright Office released a report detailing how the 22-year-old D.M.C.A. has failed to keep pace with the anarchic digital ecosystem, as online platforms have been overwhelmed by a crushing volume of takedown notices. Between 1998 and 2010, Google received fewer than three million such notices; in 2017, the company got more than 880 million — an increase of more than 29,000 percent, according to the report. Many requests are legitimate, but the report notes that other motives include “anti-competitive purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”

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.”

‘I don’t want her to make any more money’
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.

Still, Ms. Cain is fighting the lawsuit. “The theft of my work was devastating,” she wrote in a Facebook message to her followers last spring. “Unfortunately, I am now facing retaliation for doing what I am legally allowed to do, which is to try and prevent unauthorized uses of my works.” More than 70 fans left encouraging notes, punctuated by heart emojis and angry cat .gifs. “It is infuriating that she can drag you through this when she is the one who stole your work,” one wrote.

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.

Correction: May 23, 2020
An earlier version of this article stated incorrectly that Google Play was among the retailers that stopped selling the book "Crave to Conquer."

Alexandra Alter writes about publishing and the literary world. Before joining The Times in 2014, she covered books and culture for The Wall Street Journal. Prior to that, she reported on religion, and the occasional hurricane, for The Miami Herald.
[NSFW] [pr0n] [+8]
[by Dienes@6:30pmGMT]


Menchi said @ 11:47pm GMT on 23rd May [Score:2]
The best part about all of this is that someone had to sit down in a professional capacity and decide how they were going to explain mpreg and knotting to the New York Times readership.
Dienes said @ 1:32pm GMT on 24th May [Score:2 Funny]
My deepest heart's desire right now is for this to go all the way to the Supreme Court and Brett Kavanaugh is forced to read it.
dolemite said @ 2:26pm GMT on 25th May
amen to that
cb361 said[3] @ 12:06am GMT on 24th May [Score:2 Informative]
And all based on a false and fantasised interpretation of the Omegaverse, derived from early flawed observation.

True Alphas live in sophisticated communities, and don't preycall beta-cuck cock-slut Omegas without asking. But if you take a lot of gimps who don't know each other out of their accustomed omegan environment and dump them in an empty sex dungeon with a lot of feral mad-lads, of course you won't observe natural behaviour.
dolemite said[1] @ 2:31pm GMT on 25th May [Score:1 Funny]
Mmmm, wolf-kink. I must say that the NYT article gives a much better treatment of the story than what I'd seen at
hellboy said @ 7:54pm GMT on 23rd May
It takes a lot of gall for a fan-fiction writer to accuse someone else of intellectual property theft. Cain sounds like a real POS.

And tropes are by definition things that have been used so many times they've become cliches. In other words, the furthest thing from original.
endopol said @ 2:01am GMT on 24th May
It seems like her publisher was the real force pushing to copyright the Omegaverse. She seems to have made the suit in mostly good faith, albeit without much perspective on the scope of human creativity.
hellboy said @ 9:18pm GMT on 24th May
That's not how I read it. Cain attacked Dragon's Maiden, who backed down without a lawsuit, then two years later asked Blushing Books to go after Ellis, which they did on her behalf. When she demanded that Ellis be prevented from publishing any more Omegaverse books, BB pointed out that she didn't own the trademark. They did say that they might be able to get it, but that sounded to me like trying to placate a demanding author. BB eventually settled the counter-suit against them and dropped Cain as an author (which they probably should've done sooner), but she's still fighting even though she has no legitimate case.

Let's just say it doesn't surprise me that she grew up in Orange County.
steele said @ 9:59pm GMT on 23rd May
lmao, was just about to post this. Disappointed yet again by an article that goes out of it's way to discuss abuse of DMCA without really questioning whether or not IP is even a legit concept, but whatever.

Anyways... One day left on this. Some VR stuff.
Lewd, Nude & Rude "Covid Boredom Smasher" Bundle by Holodexxx and 10 others -
twinkle said @ 12:21am GMT on 24th May
i never thought i'd be reading about erotic wolfjobs in the new york times but hey that's 2020 baybeeee
5th Earth said @ 1:01pm GMT on 24th May
Tldr: DMCA is bullshit, fandom contains people why try to own things they didn't invent.
snowfox said @ 11:28am GMT on 26th May
If you take away our right to steal ideas, where are they gonna come from??

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