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Inverse character theft


The events that sparked this rant happened in the first week of September, 2000, and the rant itself was written on the 1st of October, 2000.

Not very long ago, I ran into an irritating situation. I'm familiar with conventional copyright infringement and character theft. Then someone I know, a lady by the name of Kittiara, had the inverse happen to her: out of the blue, a Ms. Renee Newsom came along threatening legal action against her if she didn't stop using her completely original character Sou An Ki, nicknamed Trouble, based on superficial and coincidental similarities.

Kittiara's character Trouble appears in the the Trouble's Tales series, normally found at the Velar Archives, specifically at:
http://velar.ctrl-c.liu.se/vcl/Authors/Kittiara/ or
http://www.silverglass.org/kittiara/index.html
I don't give a direct link because, while Kit's stories are well-written science-fiction stories, they also contain a lot of things that many people don't care for. It is very definitely erotica with a BDSM bent. If you want to read it, you'll have to cut-and-paste the URL into your browser's location bar. You won't be able to complain you "accidentally" followed a link to it not knowing what was there.

Kit's character is pretty well-described in better than 30 stories covering over 3 megabytes of text and first posted to the Web in 1997. My first encounter with them was in early 1998, and jon'wI has done drawings of the character dating to early 1997. She's a spacer who gets shanghaied and railroaded into slavery by an unscrupulous station, winding up being trained as a pleasure slave and sold off. She ends up the property of the leader of a group of space pirates. Unusual ones at that, seeing as how they are intent on putting the slave trade and the government that allows and encourages it out of business. She becomes by turns an intelligence field agent and then the head of the intelligence operation for the pirates. Over time, she discovers that she's not sure she wants to be freed by her Lion ( and she very definitely thinks of him as her Lion, his slave or no, as one story makes very clear ) and when offered her freedom she turns it down. She displays a wicked sense of humor, a well-developed sense for appropriate revenge and a definite set of ethics and sense of honorable behavior. Her relationships with other members of the pirate group are the source of much material, as are her missions to gather information on their enemies, co-ordinate operations with other groups of pirates, obtain supplies and sell or trade their ill-gotten loot.

Now, Ms. Newsom only cited two URLs describing her character Trouble:
http://geocities.com/quorval/trouble2.html
http://www.larp.com/jahavra/
Both are extremely sketchy as far as describing the character's background, and contain no information whatsoever about the character's personality, mindset, normal actions and reactions to situations and all the other things that go into making a character unique from all others. A search of the Web turned up only two other mentions of her character anywhere, a mention of the name on the page describing another character in the live-action role-playing game Ms. Newsom's character is apparently involved in, and a mention of a similar character in an RPG for a group based apparently in England. Similar searches on Ms. Newsom's name ( and the other name listed on her pages ) turned up nothing else on or by her. She claimed to have published works featuring her Trouble, but a check of Books In Print turns up no listing for her. A search of Amazon similarly turned up nothing by her, and a check for the character turned up only the completely different character Trouble featured in the book Trouble and Her Friends, written by Melissa Scott and published in 1994. When asked directly twice, Ms. Newsom declined to give any details about where and when her character had seen publication.

The only things known about her character are a few background points. She lives in a medieval world, she was captured and trained as a pleasure slave and sold to pirates, presumably hated it as she escaped, and later injured her previous owner when he tried to reclaim her. She's a mage, mother and former Ambassador. That's it. And more oddly, all the pages she references, the artwork on them and the photographs of her on them all were last touched at various times in 2000, most commonly September, March and January.

Now, normally this would be an open and shut case. Ms. Newsom's character isn't very well-defined, certainly not sufficiently to meet the rather stringent requirements of the existing precedents in copyright law. Kittiara's character is considerably different from Ms. Newsom's, at least as far as Ms. Newsom has presented anything to compare with. The only similarities are the nicknames, the species ( anthropomorphic cheetah ) and one point of their backgrounds. In personality they differ wildly on the one point where Ms. Newsom has provided any information at all. And with so little information available, it would be impossible for Kittiara to have copied it in any case because one cannot copy what one has not seen. This is an established point of copyright law, and the reason established authors refuse to read unsolicited manuscripts and such: if they have never seen the other person's work then, if they later come up with a very similar or even identical idea or story, they cannot be accused of copying that work. In addition, normally similar or identical names, or even similar character concepts, are not considered infringement. Were this not the case then, for example, J. Michael Stracynzki's psionic character Talia from Babylon 5 would be an infringement of Mercedes Lackey's psionic character Talia from the Valdemar books. Obviously there's not a problem, and equally obviously those two are, to anyone who's acquainted with both, completely different characters, so that level of similarity isn't infringement. And yes, I am pretty confident of this, as while I am not a lawyer the articles written by lawyers all say the same thing, and the lawyer Kittiara did inquire with agreed that Ms. Newsom doesn't have a reasonable case.

Unfortunately, what she does have is a stubborn refusal to look realistically at the precedents and law and apply them to her own case. And even a successful defense will cost more than Kittiara can afford to pay. So, an author is wrongfully prevented from using her own original character by someone. Not completely prevented, of course, but Kittiara has had to put a considerable amount of work into re-editing the text to change names and suchlike to satisfy Ms. Newsom. Frankly this irritates me immensely, not only for the specific incident but because of the implications of allowing such superficial similarities to constitute infringement. Note the Talia/Talia example given above.

If you are, or know of, a lawyer who would be interested in talking more to Kittiara and possibly helping out, I can put you in touch with her and would be grateful.

On March 15, 2001, I got a note from another of Ms. Newsom's friends. In response to her comments, I decided to include here the reference and legal analysis I use as the basis for my opinion. I may not be a lawyer but the gentleman who wrote this analysis of copyright law as applied to fictional characters is, and the analysis he presents, including citations of court cases, all runs along the same lines: courts are very reluctant to find copyright infringement unless the character being infringed upon is very well-developed and the similarities extend to the entire character and not just a name and/or a few facets of the character. In my opinion, having read Kittiara's stories and viewed the pages Ms. Newsom has cited as background for her character, the differences between the two characters far outweigh the two points of similarity.


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tknarr@silverglass.org