It’s been a puzzle for a while – when does a trope turn into one person’s intellectual property? A judgment in Texas has recently come closer to the answer.

For those of you unfamiliar with the term, a “trope” is something that is common to many romance novels. The dark-haired, blue-eyed, strong alpha hero, the meet cute, the themes like secrets babies, big misunderstandings or friends-to-lovers. We’ve all met them, and we all know the ones we prefer. But when do these common tropes move into copyright? When can a trope turn so specific that it’s suddenly particular to one owner?

The findings of a case brought recently cite many instances of romance novel trope and is a fascinating read. You should really read the findings for yourself:

It concerns two books – Kate Walker’s The Proud Wife and Kelly Rucker’s unfinished How to Love a Billionaire, in which Kelly Rucker claimed that Kate Walker had copied elements of her book, which she’d entered in an RWA contest.

Here’s an extract from the findings:

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.”

Rucker also claimed character similarities – both she and Walker wrote about a wealthy, dark haired, blue-eyed man and a red-headed heroine, and Rucker cited elements of each character that she found similar.

The judge said: “A character is not copyrightable unless the average lay person would readily recognize that character.”

So if you wrote about a dirty-blond, square-jawed character with a flashy taste in clothes who ran a fight club, the creators of the film might have a case, but a red-haired heroine who sometimes wears her hair up is too common a type for anyone to claim as their own.

What does that mean for the writer in more general terms? I don’t want to comment too specifically on this case because I’m not a lawyer, and I can see more general elements that I’ve come across over the years I’ve been published. I do try to help new and aspiring authors, and some attitudes are repeated.

Every writer should be aware of the differences between copyright, plagiarism, and trademark, for a start. Not from what they’re told by other writers, but from the source. Go and read the boring stuff. Talk to a lawyer. Obviously a lawyer saw something in Rucker’s case, but it wasn’t enough even to take her to court – the case was dismissed without prejudice before it got that far.

Then think about what you’re writing, and for the purposes of this article, I’m assuming the answer to that is romance. Romance isn’t about the plot, it’s about the characters and how they react in certain situations. It’s about individuals. Tropes are themes that romance writers repeatedly use, in order to concentrate on character. A series written on one theme may contain very different books, even if they’re by the same author. So a series with the same theme, revenge, say, or secret babies, will have the same outcome because they’re romance, but the similarity could and should stop there, because the characters involved in the story are demonstrably different. It’s why an author like Sarah Morgan can work so well within the confines that Harlequin Presents puts on her and come up with a new, fresh look on tropes that have been used by other authors, and, indeed, herself several times over.

A woman struggling to survive in the business world, in charge of a company with people she cares for is taken over by a bigger company run by a humourless, ruthless, sexy alpha male who is a straight-down-the-line thinker. How many times have we read a book with that theme? But there’s only one “Doukakis’s Apprentice,” Sarah’s RITA winning book from last year. That’s because the characters, especially Polly, are so memorable. They deal with the situation in their own way. Add to that Sarah’s own inimitable, witty style of writing, and we have the writer’s “voice,” the element so important to a book for any reader.

Or take Kate Walker’s modern retake on Wuthering Heights from a year or two ago, The Return of the Stranger. She takes the Cathy and Heathcliff story (which is, by the way, completely out of copyright), and makes it modern, adds twists and ideas that wouldn’t have been possible with the original. Her “Cathy” is also less annoyingly willful, more driven by life’s practicalities. So we’re not reading the same book twice, we’re revisiting favoured themes and ideas, and enjoying a new take on them.

I took part in a multi-author series recently, the “Cougar Challenge” series. It’s a huge success, and includes the likes of Mari Freeman, Mari Carr and Desiree Holt, to name but three of the great authors who contributed. We started with a theme – older woman chases younger man, and an inciting incident, where the women meet at a Romanticon convention, agree their lives need changing up, and challenge each other to take the Cougar Challenge. The books were so different, all romantica ™, but they worked in the series because they involved different women with different needs. In fact, I wrote two books for the series, (plug alert!) Beauty of Sunset and Sunshine on Chrome. Not one of the books copied off any of the others, though we even used each other’s characters at times, with permission. It was a great experience, but no way did I take any more than the initial themes. Neither did any of the other authors. Not only do we have respect for each other, we don’t have a need.

Which brings me to my next point. An established author will have a folder or notebook crammed with ideas. More than she’ll ever use in one lifetime, usually. They are usually themes that mean something to the author, that she wants to write about. Characters who have engaged her interest, an aspect of a story she wants to use. They can come from anywhere—a conversation, a news report on the TV, even watching people as they interact and then the demon called “What If?” jumps in. Because I write historical romance, I collect newspaper snippets, journals, reactions that people had to a certain situation, and they’re all tucked away. I’m working on one now, but I defy anyone to tell me the original source, because I’ve changed it and twisted it to serve a situation and characters I want to talk about. That’s why an author will often roll her eyes if she’s asked “Where do you get your ideas from?” Very often, she doesn’t know, but the authorial part comes when she adds her own input and makes it something she wants to say. The story takes on a whole new direction. It’s what you see in the first few scenes of the Altman film, The Player, when people are pitching stories. “Godzilla meets the Wizard of Oz,” they say, and wham, the story turns into something else.

The cliché that there are only a few (some say seven, some nine, some eleven) original storylines in the world is a truism, and not really useful, it’s just something people like to trot out sometimes, but in a way, it has an element of truth. As is the saying that there are as many different stories in the world as people who want to tell them.

Knowing Kate Walker as I do, I can’t think of anyone less likely to take a competition story from an unknown, untested writer and say “I’ll copy that.” She’s not exactly short of ideas of her own, she’s been writing for Harlequin for many years, and she teaches classes in how to write the perfect romance. She’s very generous to new authors and doesn’t stint with advice. Furthermore, Harlequin is a huge organisation. I write for Carina Harlequin, but I feel safe reviewing books from other lines because I have absolutely no contact with them internally at all, although some of the authors are friends (I either don’t review their books, or I will state my personal bias at the start of the review). Kate Walker not only had no input on the competition stated in the case, but she’d never heard of it.

However, new authors are sometimes obsessed with the idea that they have written the single most original story in the world, and it’s that, rather than their treatment of the characters or their individual voice that matters. And that when they send the story in to a competition or show another author the work, that author is going to drop everything and steal their idea. Sadly, cases like these make authors wary of helping up-and-coming new authors. I know authors who refuse to look at the work of others or who insist they sign an agreement not to prosecute, because of worries of just such cases coming to court. I won’t go that far, but I am aware of the problem, and I consciously ensure that I’m not reading what I’m currently writing. Since I write in three subgenres, I can do that. Others can’t.

An author is rarely short of ideas, although I have to admit that’s not always the case. Sometimes authors will engage in a bit of bandwagon jumping. The recent spate of pseudo-BDSM books with a powerful young billionaire and a waif-like innocent, young heroine attests to that. But each author brings her own version of the story to market, and the readers will buy because of that difference. They like the theme and they want to read more, but they don’t expect carbon copies. Riffs on a theme.

So when you write, make sure that it belongs to you. Write close to the heart and write the truth, as you see it. That way, nobody can accuse you of copying anything of theirs, because your three-headed alien baby isn’t that three-headed alien baby, it’s yours.

Other helpful copyright/plagiarism blog posts:

Kate Walker

Laura Vivanco