Archetypes, Tropes and Copyright

There’s an important post over on the Pink Heart Society blog this  morning.  It’s by Michelle Styles and it talks about tropes, archetypes and copyright.  If you’re at all interested in writing  - and  reading – I suggest you go and read it right now.

Now I’m not just saying this is important  because it has been provoked by something that happened to me. That’s important right enough  -  but this has more wide ranging impact  and is much more significant for the writing world, for authors, unpublished writers, and anyone who is interested in that world for any reason.

Some of you may know that an unpublished author recently brought a case against me and Harlequin  claiming that they had used her contest entry to craft  my award nominated novel The Proud Wife. The unpublished author had submitted her 20 pages and synopsis into many RWA sponsored contests and cited one where  she thought I had been one of the judges. In fact I  had never heard of the contest and had never judged it. The unpublished author felt so strongly that the works were similar, citing 40 different   points of commonality that she took the case to court.   Earlier this month the federal judge dismissed the plaintiff’s  claim with prejudice and without leave to amend  because there were no instances of copyright violation. In other words, the judge did not have to decide if I had accessed the unpublished author’s work through a contest entry because there was no copyright violation in the first place.  All 40 elements cited belonged in the unprotected category, rather than the protected  category. In other words they were part of the trope of romance and the similarities flowed from that.

If you want to know more about tropes in romance  then read Michelle’s post.  All I will add is that from time immemorial writers have been reworking plots, telling the same stories in different way, with a new slant, a new twist.  Prior to the 18th century, writers borrowed freely from each other without shame or punishment. (The Latin word plagaria referred only to the act of physical kidnapping.) Shakespeare borrowed passages from Plutarch and contemporaries. Books were copied by hand prior to the rise of the printing press, and amanuenses were given liberty to rework texts. England passed the first copyright laws in 1709, as mechanical reproduction of works and new ideas about individuality became widespread. These laws provided legal remedies for authors--writers and composers mainly--who believed their works had been unfairly lifted. The U.S. Constitution required Congress to pass similar copyright laws.

Plagiarism is  abhorrent  to me -  totally wrong – but plagiarism is reproducing  verbatim without the author's prior consent.  Plagiarism is  lifting another person’s words, copying their story, adding nothing new or different and above all never acknowledging the debt to the original.   What romance  writer has never written her personal version of Cinderella, Sleeping Beauty,  The Taming of The Shrew, Pride and Prejudice . .  .   Even if she hasn’t followed the path of the original story, the memories of it, the themes  and plot lines are there in our collective story-telling imaginations and they will come out to a greater or lesser degree in each story we tell.   If I meet any  writer of romantic fiction who tells me that she had never  ever touched on any of the classics  then I’m unlikely to believe her. Where  do the wonderful alpha heroes we all know and love (or hate  as the case may be) come from if not from these classic stories?

All fiction is full of echoes and reflections that writers play with their predecessors. The Russian critic Vladimir Propp has even  proposed that all stories could be  made up of one of seven archetypes, that cover the whole of fiction for all time. No matter what amazingly unique idea you might come up with for your new novel, chances are it's already been used hundreds, possibly even thousands, of times before. You can’t copyright an idea.   You can’t copyright tall, dark handsome heroes.  Or beautiful heroines  - whatever  their colouring. You can’t copyright the weather on a day a scene takes place.  You can’t copyright a book about a miscarriage – miscarriages aren’t copyrightable. I should know, I’ve suffered one and so, sadly,  have many of my friends.

Since I wrote The Proud Wife  I have read a dozen or more novels with very similar themes – some series romance, some  bigger ‘single title’ books.  None of them  stole anything from me. They might or might not have read The Proud Wife – it doesn’t matter. The themes, the tropes of this book  are archetypes of romantic fiction. Each time a story is retold it is worked into a different form , with different characters, a different setting,  different  touches that take a classic trope/archetypal characters  and turn them into something fresh.

I’ve written 60 published novels in  the nearly 30 years I’ve been writing. My 61^st  A Throne For The Taking will be published in June. I don’t need anyone else’s stories to keep me writing – I have enough trouble with the ideas and the characters who are buzzing in my head demanding that I find time to write them down.  But  there is one other side of this case that truly saddens me and that is the effect that this case has had on so many, many fellow authors. And as a consequence, will have on many as yet unpublished writers working hard to learn their craf and looking for help and advice along the way.

One of the things I have always loved about the world of romance writers is the way that so many of them – of us, because I include myself in this group -  have been only too willing, totally happy, to help unpublished writers on their way towards to goal of being published.  For years, published authors have judged  contests  run by the RWA and other organisations. We have read and critiqued scripts for new writers – writers who often send scripts unsolicited, asking for help.  We have offered our professional expertise to help both new writers and important charities  like Brenda Novak’s  annual Auction  to raise money for research  to look for a cure for diabetes.

Not any more.

Because this  generosity is what this case has damaged.  So badly.  I have had so many messages from fellow writers who would have donated a  reading/critique as a lot in this valuable auction or who would have volunteered to judge a contest to help unpublished authors – but after this,  not any more. 

And this is why the article on the PHS is important. Because  if people don’t understand what is copyrightable and what isn't and what plagiarism really  is  then this can happen again and other authors can be put through  this  with no justification.

So please read Michelle’s post  and  learn   more about these things – and if you are interested, you can read the full 18 page judgement here   The analysis starts on page 9 and runs to page 17.