When I was in grad school, one of the required courses for Arts Admin­is­tra­tion was “Art Law.”  We spent nearly half the semes­ter dis­cussing copy­right law and, boy, is it ever tricky!

The one les­son they drilled into us was this: copy­right is for tan­gi­ble things.

If you can put it into phys­i­cal form, it can (usu­ally) be copy­righted.  By their very nature, ideas, thoughts, con­cepts, etc. are not physical.

For exam­ple: Take two painters.  One is on a beach in Mal­ibu, the other in Hawaii.  Both are paint­ing the Pacific Ocean.  The artists have never met and have no knowl­edge of what the other is doing.  Not sur­pris­ingly, they both choose to paint the ocean blue.

Now, even if the oceans in the paint­ings are very sim­i­lar, with waves break­ing in the same places, and the very same shade of blue, there could be no copy­right infringe­ment. Even if they were on oppo­site ends of the beach in Hawaii.

Why? Because you can’t copy­right the ocean or the color blue.

They’re con­cepts, themes, what-have-you—not orig­i­nal copy­rightable material.

I’m point­ing this out because of the recent law­suit claim­ing Stephe­nie Meyer copied por­tions of a rel­a­tively unknown teen author and used them in her book Break­ing Dawn.

There’s an array of rea­sons why the case won’t hold water (not the least of which is that Ms. Meyer wrote and filed for the copy­right of For­ever Dawn, the orig­i­nal sequel to Twi­light, before Ms. Unknown even fin­ished her book), but I’d like to take a moment and focus on the sim­ple fact that prov­ing copy­right infringe­ment is REALLY REALLY HARD.  Espe­cially when it comes to books because they deal with ideas.  The only phys­i­cal thing about them is the bind­ings and the actual words.

So, unless the pas­sages are lit­eral copies, the like­li­hood of win­ning a law­suit is very slim.  The bur­den of proof falls on the plain­tiff, not the defen­dant, and s/he will need to prove own­er­ship, sub­stan­tial sim­i­lar­ity and access.

Assum­ing Ms. Unknown does indeed own the work in ques­tion, here’s my dis­sec­tion of her case (you can read the whole thing here if you like):

1) Sub­stan­tial Similarities

• The wed­ding scene
• Post-wedding sex on the beach scene
• Post-sex glow passage
• Char­ac­ter awak­en­ing from a nightmare
• Descrip­tion of a woman who’s sick because she’s preg­nant with devilspawn
• Both women believe dev­ilspawn will be a boy
• Descrip­tion of woman dying as dev­ilspawn is born
• See­ing new­born child for first time
• Descrip­tion of being turned into a vampire
• The male char­ac­ter refer­ring to his roman­tic inter­est as “love”

First, I have to say this is not the only novel to fea­ture wed­dings, sex, night­mares, women seduced by vam­pires, peo­ple being turned into vam­pires, or evil babies. Not by a long shot.  Those are plot devices and pretty com­mon ones at that, par­tic­u­larly in recent years.

The only major dif­fer­ence is that Stephe­nie Meyer is famous. And ooz­ing with cash.

If you look at the text com­par­i­son, sure, there’s some sim­i­lar­i­ties but it’s obvi­ous noth­ing was copied word for word.  And really, how many ways do you think novice authors are going to describe a wed­ding? Or sex on the beach? Or their ver­sion of Rosemary’s baby?

VERDICT: Ms. Unknown’s idea of sim­i­lar just isn’t sub­stan­tial enough.

2) Access

• Unknown author posted sev­eral pas­sages from book on web­site as she wrote it.
• Unknown’s book pub­lished in 2006, Break­ing Dawn pub­lished in 2008.

Just because some­thing is out there on the inter­net does not prove the defen­dant saw it. There’s infor­ma­tion about under­wa­ter weld­ing on the inter­net, but that doesn’t mean I’ve read it. How­ever, if cook­ies from your site are still sit­ting on their hard drive, now that would be proof.

As men­tioned above, though Break­ing Dawn didn’t come out until 2008, the basis for it (which just hap­pens to include ALL the sup­posed sim­i­lar­i­ties) was writ­ten sev­eral years before.  The funny thing is, Ms. Unknown didn’t file her copy­right appli­ca­tion until AFTER Break­ing Dawn was pub­lished.  Hmmm, that’s not sus­pi­cious at all …

VERDICT: Sup­posed evi­dence makes it look like Ms. Unknown infringed on Ms. Mey­ers copyright!

Clearly, this is a pub­lic­ity stunt. Ms. Unknown wants to entice Ms. Meyer’s crossover audi­ence to read her book.  How­ever, I sus­pect she’s gravely under­es­ti­mated that audi­ence.  Twi­light fans tend to be die-hard believ­ers and Ms. Meyer is their Queen Bee—an attack on her is only going to get them to lift their torches and pitch­forks, not their wal­lets.  I wouldn’t be shocked to see in the headlines:

Unknown Author Clubbed to Death by Mob of Rabid Teens All Wield­ing the 800-page Spe­cial Edi­tion of Break­ing Dawn!

MY PREDICTION: Accord­ing to her web­site, Ms. Unknown is an aspir­ing author/model/actress/singer and the book in ques­tion is part of a trilogy.

My money is on Ms. Unknown’s Book Two—coming soon to a store near you!