PHS Editor and Harlequin Historical author Michelle Styles explains a bit about tropes, archetypes and copyright
As some of you may know, an unpublished author recently brought a case against PHS columnist Kate Walker and Harlequin claiming that they had used her contest entry to craft The Proud Wife. The unpublished author had submitted her 20 pages and synopsis into many RWA sponsored contests and cited one where she thought Kate Walker had been one of the judges. In fact Kate Walker 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 The unpublished author felt so strongly that the works were similar, citing 40 different points of commonality that she took the case to court. What followed was many months of agony for Kate Walker who knew she was innocent. Harlequin’s legal team asked her not to speak about the case to anyone. 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 In other words, the judge did not have to decide if Kate Walker had accessed the unpublished author’s work through a contest entry because there was no copyright violation in the first place.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.
The word trope can have people scratching their head or even exclaiming that romance is generic.
A trope is a metaphor for a group of words or expressions and is not to be confused with a troupe which is a company of players or dancers.
Tropes and archetypes are very important in fiction writing. You can think of them as architect's drawings or plans rather than the finished lived in house. Knowing the trope or type of story you are writing or the archetype for the character you are creating can help. Just like you would run into problems if you designed a house without bathrooms or a kitchen, if you write a mystery story where you forget to solve the mystery, the reader will feel cheated. Archetypes exist because certain characteristics and ways of behaving are universal. They are a way of creating a character whose role in the story. Tropes and archetypes are good things as they help the work resonate with the reader. Trope and archetypes help authors tap into the subconscious. They are the drawings and cannot be own by anyone. They are not the finished product. It is how the author builds that house and furnishes that makes the story her own. The author's expression and her unique voice are how an author makes an age old story seem new.
The judge’s remarks are very instructive about what an author owns and therefore can copyright and what is generic aka a trope and therefore is freely available to all. Namely on page 12 “There are similarities between The Proud Wife and How to Love a Billionaire, but not in
legally protected elements. The similarities between the two works are in generic elements —
features, plots, characters, and elements found in many romance novels. A theme or trope that has
long existed is not “expression” that the Copyright Act protects.” In addition the judge states when discussing the works further on page 14 “Many of the similarities accompanying these tropes in the works are scenes à faire. They describe
similarly choreographed scenes of love, estrangement, rediscovered passion, and recommitted love.
The details of these scenes are similar not because of infringement, but because they flow logically
from the plot elements.” About characters, the judge states on page 14 “A
character is not copyrightable unless the average lay person would readily recognize that character.” Several cases are cited about what a distinctive character is. The generic male protagonist of a series romance who is tall, dark, handsome and rich is not copyright protected. And it does not matter that both heroines had long dark red hair which was worn up in the first scenes. These are details that are not copyright protected.
If you are interested, you can read the full 18 page judgement here http://docs.justia.com/cases/federal/district-courts/texas/txsdce/4:2012cv01135/967642/20/0.pdf?1361981911 The analysis starts on page 9 and runs to page 17.
I do think it is very important to highlight this case, so that people understand the difference between scenes a faire and other universal elements of a romance and the elements that make a work uniquely the author’s. It is how you express a trope that makes it yours just as once you live in a house and furnish it, it becomes a home. It is about letting the author's voice shine through.
To learn more about Kate Walker and her enthralling book The Proud Wife, visit Kate Walker's website www.kate-walker.com
Michelle Styles writes warm, witty, and intimate historical romance. Her latest An Ideal Husband? (published April 2013) uses a fake engagement trope. Yo ucan learn more about Michelle on her website www.michellestles.co.uk