Can You Infringe on an Infringement?

Stephen Carlisle August 12, 2021

Jonathan Bailey’s excellent website Plagiarism Today recently ran an interesting story. ¹ It seems an eagle-eyed reader noticed some great similarities between the gay erotic novel “Paid to Kneel” by Romilly King and a similar story posted on the internet. ² While the comparisons posted by the reader on Twitter are hard to read, it does seem like there was extensive copying, and a lot of it word for word. The original author, who writes under the pseudonym Blue_Jack, was able to get “Paid to Kneel” removed from its listing on Amazon. ³

What takes this case out of the normal everyday plagiarism story, is that what Blue_Jack wrote was “fan-fiction” for the now defunct TV series “Supernatural.” ⁴

I have written about “fan fiction” before. Back then I wrote:

“Essentially, fan fiction (FF) arises when fans of a particular movie, book or series of movies or books, create new works involving the same characters, settings and events. This is almost universally done without the express permission of the creators. The works are inevitably self-published via the internet, using several websites devoted to fan fiction, on essentially a non-commercial basis.  The most famous example of FF is Fifty Shades of Grey, which started as a piece of FF using the characters from the Twilight series by Stephanie Meyer. The author, E.L. James, changed the names and attributes of the characters and removed other identifying information, the result being an international best seller and later a movie version.” ⁵

The wrinkle here is that “fan fiction,” by its very nature, is copyright infringement. They are “derivative works” under section 106 (2) of the Copyright Act, and most certainly require the permission of the original author to create them. Can you commit copyright infringement on a work which itself is infringing?

No doubt, if there is significant new expression attached to the material that has been lifted from “Supernatural,” this new material could be capable of copyright protection. Certainly there was enough appearance of plagiarism to get “Paid to Kneel” removed from Amazon.

But beyond that, there seems to be little more that Blue_Jack can do. In order to sue for copyright infringement, Blue_Jack would have to file a copyright registration. There, he would have to disclose that the work was a derivative work based upon the “Supernatural” TV series and disclaim that material which he did not create. While I do not know the copyright examination procedures, it would seem logical that the creation of a derivative work based on a famous TV series would flag the registration for review, one that would require evidence of a proper license.

Even if the registration did go through, its validity would most certainly be challenged in any resulting litigation. If the registration was held to be invalid, the entire lawsuit would have to be dismissed.

The nearest adjudicated case is that of Anderson v. Stallone ⁶ where an unpublished treatment for a future Rocky movie was alleged to have been infringed by the movie “Rocky IV.” There, the Court granted summary judgement to Stallone on the grounds that “Anderson’s treatment is an infringing work that is not entitled to copyright protection.” ⁷

So perhaps this plagiarism conundrum is a fluke, to be quickly forgotten.

Or it could be the harbinger of larger problems ahead.