It was reported today that "an unpublished author recently brought a case against [...] Harlequin claiming that they had used her contest entry." The case was brought before the District Court for the Southern District of Texas (Houston Division) and can be summarised as follows:
In 2011, Harlequin Enterprises, LTD. published a romance novel, The Proud Wife. The protagonists are a green-eyed, red-haired beauty and a tall, dark, handsome, wealthy man. After overcoming a series of obstacles to love, the couple rediscovers their passionate romance. Kelly Rucker alleges that this Harlequin novel infringes a copyright she holds for a romance story that she titled How to Love a Billionaire. Her book also features a green-eyed, red-haired beauty and a tall, dark, and handsome wealthy man. The book also describes how the couple overcomes a series of obstacles to their love that the ends with the couple . . . the sentence need not be completed. (1)
The reason "the sentence need not be completed" is that everyone knows how a romance ends. And if a romance ends happily, that's not proof that it's plagiarising another romance novel: it's proof that they're both working within well-known generic constraints. Similarly, there are
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. [...] “Material or themes commonly repeated in a certain genre are not protectable by copyright,” nor are “so-called scenes à faire.” [...] Scenes à faire generally involve “incidents, characteristics or settings which are as a practical matter indispensable, or at least standard, in the treatment of a given topic, what flows naturally from these basic plot premises.” [...] These elements are not protected because they are strongly affiliated or connected with a common theme and thus not creative.(12-13)
There are lots of romance novels in which
A beautiful woman and a handsome, wealthy man fall in love, become estranged, find themselves alone together in close quarters, have a passionate reunion, rediscover their love and commitment, and begin a new life together. These are familiar plot elements in the romance genre. 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. (14)
And just in case that's not clear enough, the Court explains further:
The similarities between the characters in Rucker’s work and in the Harlequin work are not legally protectable. Both male protagonists are black-haired, blue-eyed, “tall, dark, and handsome” figures. They are wealthy and powerful. The men sweep the female protagonists off their feet, into a luxurious life. The women are beautiful, with red hair and green eyes. They are slender, curvaceous, and young. Their personalities are strong-willed and passionate. These descriptions suffice to make it clear that these are generic characters in romance novels. (14-15)
One would hope, though, that a good romance author would attempt some characterisation which went beyond this and that, therefore, as in this case, it would be possible to conclude that a bare outline such as the one above does not "convey the 'total concept and feel of the works.'" (17). As Michelle Styles commented: "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."
The case was dismissed and the Court's full decision is available here.
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Rosenthal, Lee H. "Rucker v. Harlequin Enterprises, Limited: MEMORANDUM AND OPINION entered GRANTING 7 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM." 26 February 2013.
Styles, Michelle. "Writer's Wednesday: A Troupe of Tropes." The Pink Heart Society. 27 March 2013.
The image of Justice, created by Edward Onslow Ford is in the public domain and was obtained from Wikimedia Commons.
