The ethics of the wild and wacky world of fanfiction have been debated in the publishing world for some time, especially following the commercial success of published fanfictions like E.L. James’s infamous Fifty Shades series. In 2018, a particularly strange fanfiction-related litigation hit the American federal court system. There are a few things that make this case strange: the litigation is between two fanfiction authors, and is over the abuse of copyright law rather than copyright infringement. This litigation, known as the omegaverse litigation, however weird it may be, actually exposes some serious flaws in American copyright law – specifically a law known as the Digital Millennium Copyright Act (DMCA) — which could affect the future of small publishing companies or self-publishing authors.
Before looking at the case, it is important to clarify what exactly fanfiction and the omegaverse are. Fanlore, a wiki about fan culture, broadly defines fanfiction as “a work of fiction written by fans for other fans, taking a source text or a famous person as a point of departure” (“Fanfiction”). Fanfiction has its own genres and subgenres, each with its own set of established and unique conventions. The omegaverse is one such subgenre of fanfiction. Specifically the omegaverse is a subgenre of erotica. I will try to spare you most of the dirty details. The omegaverse is based on the notion that wolf packs are comprised of dominant alpha males and weaker omegas. In the omegaverse genre, human characters are segregated into alphas (usually male romantic leads) and omegas. The subgenre began around 2011, in fanfiction based on the CW fantasy-drama series Supernatural. Nowadays, it spans across many fandoms. The genre’s conventions were essentially crowd-sourced within online fanfiction communities (Busse 4-6).
Secondly, before getting into the details of the litigation, it is important to discuss the DMCA. If you watch YouTube with any regularity, there is a good chance that at one point or another you have heard a YouTuber complain about having one of their videos taken down unfairly. This is because of the DMCA. The DMCA was passed in America in 1998 to protect websites from being held responsible for copyright infringements made by users. It requires American websites to immediately remove content that has had a takedown notice (essentially a copyright infringement claim) made against it. Websites are not required to fact-check the validity of takedown notices. The DMCA is basically run on the honour system. The user whose content was removed may file a counter takedown notice, but doing so could lead to more serious legal action taken against them (Congressional Research Services 11-12).
In 2016, fanfiction author Addison Cain, wondering if there was a market for commercially published omegaverse novels, decided to repurpose one of her fanfictions for publication by removing copyrighted material. She ended up selling her book, Born to be Bound (based on Christopher Nolan’s 2012 film Batman: The Dark Knight Rises) to a small press called Blushing Books. In 2018, another fanfiction author, Zoey Ellis, had the same idea and published an omegavese novel – entitled Crave to Conquer – through a small press called Quill Ink Books. Both books, as part of the omegaverse genre, used popular tropes, archetypal conventions, and plot points that were previously established through crowd-sourcing within fanfiction communities (Busse 7-8). However, when Cain became aware of a new book on the market similar to hers, she claimed copyright infringement. Taking advantage of the DMCA, Cain had Ellis’s work taken down from Amazon, Barnes & Noble, and several other online book retailers (Alter par. 8-9).
In response to Cain’s takedown notice, Ellis filed a counter notice and had her work successfully put back up. However, she felt she deserved compensation for her booking being unfairly taken down and worried that the takedown notice would damage the future of her writing career. In 2018, Ellis filed a lawsuit against Cain for “defamation, interfering with Ms. Ellis’s career, and for filing false copyright notices” (Alter par. 32). The outcome of the litigation was somewhat anti-climactic: In 2020 Quill Ink declared bankruptcy and could not continue pursuing the case.
Had Quill Ink not gone bankrupt, there would have been a solid legal foundation for Ellis’s claim that Cain had filed a false copyright notice. Cain essentially filed the takedown notice because she and Ellis’ work both shared genre characteristics, such as the presence of similar character archetypes and plot points. Again, the omegaverse genre was crowd-sourced, so Cain does not have the right to claim omegaverse conventions as her intellectual property. Second, copyright does not protect general ideas; it only protects the specific expression of ideas and trademarked, recognizable characters. Copyright law does not protect the use of generic conventions, character archetypes, tropes, or basic story elements (Schwabach 21). There was no real foundation for Cain’s DMCA takedown notice.
The fact that Cain’s takedown notice was able to go through points to some serious problems with the DMCA and does not bode well for small-time genre authors. The DMCA was founded with the interests of websites in mind, not their users (Asp 753). By shifting responsibility for copyright infringement claims entirely over to internet users – who are typically just average people – the law does not do a good enough job of protecting the rights of content creators. Many people with DMCA claims made against them, whether the claim is valid or not, will give in simply because the idea of a copyright lawsuit scares them. This leaves genre authors who self-publish or publish through small presses and rely on online sales especially vulnerable to the DMCA. Ellis’s work got taken down simply because it displayed characteristics of its genre. Authors who do not have the backing of a large publishing company may end up having their content be taken down unfairly because they do not know how to defend themselves against invalid takedown notices. In the future, in order to protect the rights of self-published authors or small presses, the DMCA must more strictly regulate against false claims of copyright infringement.
Alter, Alexandra. “A Feud in Wolf-Kink Erotica Raises a Deep Legal Question.” The New York Times, May 29 2020. nytimes.com, https://www.nytimes.com/2020/05/23/business/omegaverse-erotica-copyright.html.
Asp, Emily M. “Section 512 of the Digital Millennium Copyright Act: User Experience and User Frustration.” Iowa Law Review, vol. 103, no. 2, 2018, pp. 751-783. The University of Iowa, https://ilr.law.uiowa.edu/assets/Uploads/ILR103-2-Asp2.pdf.
Busse, Kristina. “Discussion of Addison Cain’s Alpha’s Claim, and Zoey Ellis’s Myth of Omega.” Kristinabusse.com, 2018. Available at http://kristinabusse.com/publications/omegaverse/
Congressional Research Services. “The Digital Millennium Copyright Act of 1998: U.S. Copyright Office Summary.” U.S. Copyright Office, 1998. https://copyright.gov/legislation/dmca.pdf.
Schwabach, Aaron. “The First Question: Are the Underlying Works or Characters Protected?” Fan Fiction and Copyright, Ashgate Publishing, 2011, pp. 21-58.
“Fanfiction.” Fanlore, 21 Feb. 2020. Accessed 20 Jan. 2021.