Copyright Infringement and Substantial Similarity: What Young Adult Paranormal Romance Novels (and Country Music) Can Teach Us

In Freeman v. Deebs-Elkenaney et al, a case decided by the U.S. District Court for the Southern District of New York in March 2026, the Defendant was an established author with 46 published full-length novels in the paranormal romance, young adult, and contemporary romance genres. The Plaintiff was an aspiring author of an as-yet-unpublished young adult paranormal romance novel. She had written – and registered with the Copyright Office – six drafts of her work.

In 2010, Plaintiff enlisted the assistance of a literary agent to find a publisher for her work. Plaintiff and her literary agent worked together on rewrites and revisions for three years but were ultimately unsuccessful in placing her work. Several years after Plaintiff and her agent parted ways, Defendant was asked to and did write what eventually became a four-book series in the young adult paranormal romance genre published in 2020.

Plaintiff noticed many similarities between her draft manuscripts and Defendant’s four-book series. Plaintiff later learned that her agent was also Defendant’s agent and that Defendant’s series was published by the same publisher to whom the agent had submitted one of Plaintiff’s drafts.

As you might suspect, trouble ensued, and four of Defendant’s published works were accused of infringing upon protectible elements of Plaintiff’s drafts.

It’s black letter law: to prevail on a claim of copyright infringement, a plaintiff must establish 1) ownership of a valid copyright and 2) that Defendant copied elements of that work that are original. It’s as simple as that . . . but is it, really?

As to the first element, Plaintiff’s copyright registrations establish a presumption that she is the copyright owner and that her claim is valid.

To establish the second element, copying, the plaintiff needs either an admission from the defendant or direct evidence of copying (e.g., a digital watermark or a unique component of the source work that also finds its way into the accused work and could only have gotten there by copying). It’s great for plaintiffs, but uncommon, to have an admission or direct and conclusive evidence of copying. It’s much more common to have to rely on circumstantial evidence that makes it more likely than not that the accused work was copied or derived from the source work.

In a circumstantial case, the plaintiff needs to establish that 1) the defendant had access to the original work (because there can be no copying without access) and 2) that the accused work is substantially similar to protectible elements of the source work (there can be copying without infringement if the only elements copied were not protectible).

It’s this last element – substantial similarity of protectible elements – where we find that young adult paranormal romance novels and country music have something in common. Really.

Copying can be literal – word-for-word or closely paraphrased. Or it can be non-literal – because it is not only the exact words that are protected by copyright but also the underlying story elements insofar as they are original.

With respect to non-literal copying, at very high levels of abstraction, the essence of a story is merely an idea – the romantic triangle, for example – and is not copyrightable. But as the author adds on more and more creative detail, the author eventually gets to an encapsulation of the story that is sufficiently descriptive and creative that it has reached protectible status – a defendant’s reproduction of elements of the theme, the characters, the plot, the sequence of events, the pace, the mood, the dialogue, the setting can get them into infringement territory. How much is enough to do that, you might reasonably ask? For the risk-averse, the unsatisfying answer is that there is no bright-line rule. The test applied is called the “substantial similarity” test. When is one work substantially similar to another? Each determination must be made on a case-by-case basis.

But what we can do with relative certainty is rule out recurrent sequences of events that necessarily or commonly result from the choice of a setting or situation. These are variously known as tropes, memes, or scénes á faire. Believe it or not, courts have held that:

• Drunks, prostitutes, vermin, and derelict cars are scénes á faire in works about policemen in the South Bronx;
• Conspiracies, characters with superhuman qualities, and advanced technology are scénes á faire in the action-adventure and science fiction genres;
• Heros performing feats of miraculous strength, fighting megalomaniac villains, and leading double lives are scénes á faire in works about superheroes; and,
• Lying under a chicken, sitting in a refrigerator, and facing the possibility of being scrambled or fried are scénes á faire in works about the personification of an egg.

Turning back to the Freeman case, in considering and deciding cross motions for summary judgment, it was incumbent on the judge to compare closely the actual works written by Plaintiff against those written by Defendant, not just the parties’ summaries of them – i.e., four published works compared against six drafts, the total comprising upwards of 6,000 pages of romantasy fiction. The judge made a point of noting, in the decision, that he does not ordinarily read books in this genre.

The standard test for substantial similarity asks whether an ordinary observer, unless he set out to detect the disparities between the works, would be disposed to overlook them and regard their aesthetic appeal as the same. In applying this test, courts ask whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.

Where a work contains both protectible and unprotectible elements, courts apply the more discerning ordinary observer test, which asks whether, after extracting the unprotected elements, the protectible elements standing alone are substantially similar.

As the court was unfamiliar with the genre, it allowed expert testimony as to the scénes á faire common to fantasy/romantasy fiction. Both sides’ experts in the case agreed on a list of 14 tropes/scénes á faire, including:

1. The main character is in a new and unfamiliar world
2. The main character learns her true calling, which involves using powers she never knew she had in order to win a battle between good and evil
3. The heroine is a teenager with high-school-aged friends
4. The heroine believes at the beginning that she is ordinary/human
5. The heroine is the “Chosen One” who can restore some kind of balance to the world
6. The story is set in a school
7. The school is inhabited by supernatural creatures such as vampires, werewolves, and witches
8. The heroine suffers from anxiety
9. The heroine is kidnapped
10. The heroine has lost one or both parents and has surrogate parents
11. The heroine moves to a new location to live
12. The heroine is instantly attracted to a really good-looking (as in, model-like) boy
13. The romantic lead is instantly attracted to the heroine
14. A love triangle

In addition to the agreed list, Defendant’s expert added an additional 24 tropes/scénes á faire, including elements of character descriptions, settings, events, and so on.

Although the Plaintiff pointed to hundreds of similarities between her works and the works of the Defendant, the Court grouped them into five categories for consideration:

1. Themes – insofar as Plaintiff asserted themes common to the works of each Plaintiff and Defendant, the Court found them to be highly generalized tropes common to countless works in this genre.
2. Settings – the works of Plaintiff and Defendant take place in the same state – Alaska – and include scenes that take place in a high school. Neither actual geographic locations nor common categories of building types are protectible.
3. Characters – the bar for substantial similarity as to characters is quite high – unless the plaintiff’s original conception sufficiently developed the character and Defendant has copied this development and not merely the broader outlines, the claim will not succeed. Plaintiff did not surmount this bar.
4. Plot and Sequence – the Court found that the plots of each of Plaintiff’s and Defendant’s works bore only the most tangential resemblance.
5. Pace – the Plaintiff’s works take place over approximately two months; the first in Defendant’s series takes place over two weeks, and the entire series over roughly one year.

Taking all of this into account, the Court concluded, after 40 pages of analysis supported by 73 pages of detail in four appendices, that no discerning ordinary observer could conclude that Defendant’s works were substantially similar to Plaintiff’s works.

Tropes/scénes á faire are also present, if not predominant, in country music, where song lyrics often deal with life’s bumps and bruises – heartache, alcohol-fueled mischief, misfortune-stacking, prison, relentless rain, broken down trucks, and dogs are common tropes. With country music, however, we need not wait for a court to lay them out for us. One country music song in particular lays many of them out for us – David Allen Coe’s You Never Even Called Me by My Name, where everything that could go wrong did:

• The principal character is drunk
• His mom’s getting out of prison
• It’s raining
• His truck breaks down
• A train gets in the way
• He ends up in jail
• His dog dies

Both a parody of country music and a pretty good list of country music scénes á faire. Who needs a court?