Marion Zimmer Bradley Literary Works Trust and Unauthorized Fanworks

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Event
Event: litigation involving the Marion Zimmer Bradley Literary Works Trust and a fan
Name(s):
Date(s): 2012
Type:
Fandom: Darkover
URL:
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In a complaint filed 2012 by the Marion Zimmer Bradley Literary Works Trust which owns and controls copyrights, marks and other commercial rights to Marion Zimmer Bradley's Darkover series (among other works) has taken aim at an author, Mary Battle, asserting she created and distributed derivative works based on Darkover without permission.

These two works were Molly of Darkover (published in 2006) and The Women of Darkover (published in 2007).[1] Both were self-published and sold via Lulu.

A settlement was reached and a Consent Decree along with a Dismissal With Prejudice was filed on June 27, 2012.[2]

For historical context about Marion Zimmer Bradley's work and fanfiction see the incident known as the Marion Zimmer Bradley Fanfiction Controversy.

The Books

The Complaint

Factual allegations from the complaint:
[...]

9. In 2006, Defendant Battle published Molly of Darkover, a literary work of inferior quality taking place within the Darkover universe. The work was published through Lulu Press, a subsidy publisher.

10. Sometimes thereafter, Plaintiffs were informed of Defendant Batle's publication.

11. Immediately upon learning of Defendant's unauthorized publication, Plaintiff Sharp sent takedown notices to the various websites selling Defendant Battle's novel.

12. Shortly thereafter, Defendant Battle contacted Plaintiffs to ask permission to sell her work. Plaintiffs refused. Lulu Press then removed Molly of Darkover from its website.

13. In late 2007, Plaintiff Sharp learned that Defendant Battle had published Women of Darkover, another work of inferior quality taking place in the Darkover universe, and which included Molly of Darkover in its entirety.

14. Plaintiffs purchased a copy of Women of Darkover for the purpose of determining whether and to what extent it infringed on the copyrights of the Darkover series. Women of Darkover was purchased from and to sent to San Francisco.

15. On August 10, 2009, the Trust filed a trademark application for "Darkover."

16. On March 23, 2010, the Trust's trademark application for "Darkover" was granted. [...]

17. In September 2011, the literary agent for Marion Zimmer Bradley sent out take-down notices to all websites selling Defendant Battle's Darkover novels. Thereafter, Lulu removed Women of Darkover from its website and Defendant Battle's account, per its policy on repeat infringers.

18. Fans of the Darkover series have contacted the Trust to inquire whether the Women of Darkover book was authorized.

Causes of action (Copyright Infringement and Trademark Infringement):

20. Defendant Battle intentionally wrote fiction taking place in the Darkover universe, as evidenced by the use of "Darkover" in the title, the use of settings and history from previously published, authorized Darkover novels, and the references to characters from said novels.

21. Defendant Battle intentionally wrote and published fiction taking place in the Darkover universe without the authorization of the copyright holder, as evidenced by her contacting Plaintiffs for permission, after the infringing work had already been published.

22. Defendant Battle willfully continued to write and publish fiction taking place in the Darkover universe after permission was denied, as evidenced by the publication of Women of Darkover one year after Molly of Darkover was removed from the distribution.

23. This action is within the statute of limitations for copyright infringement, as the infringement continued until September 28, 2011. [...]

26. "Darkover" is a distinctive term, and even before the filing of the trademark application has been associated with Bradley's novels by readers and the publishing industry, such that creative works bearing or using the mark are considered to have been authorized by the rights holder of the Darkover novels.

27. Defendant uses the mark "Darkover" in the title of both infringing works, as well as throughout the text of her novels.

28. Several people have contacted Plaintiff, asking whether the infringing works were published with permission, showing that consumers were confused as to the origin of the infringing works.

29. Consumers who have purchased Defendant's novels have not gone on to purchase authorized Darkover novels, showing that the availability of the works harms and will continue to harm Plaintiff's sales, as well as the author's reputation.

What the MZB Trust would like to get out of it are damages and "an injunction barring Defendant from creating, publishing, and/or distributing any work taking place in the Darkover universe, or any other universe created by Marion Zimmer Bradley, or inducing any third party to do so;"[3] ; archive link, Archived version

Reactions

The following excerpt from an entry in the Biederman Blog, written by Ashley Smolic, discusses the case, although not without raising further questions, as it first identifies Ann Sharp as the trustee of the MZB Literary Works Trust and a plaintiff in the case, and then at least implies that Sharp is Mary Battle. This is obviously an error, not least since the actual filing [3] identifies Sharp as a resident of California and Battle as a resident of Pennsylvania.
"... in 2006, the trust asserts, fan fiction author Mary Battle published Molly of Darkover, setting her book in the “Darkover universe” and employing the same characters in the Darkover series without trust approval. The trust says it learned about Sharp’s[4] book, it sent a take down notice to publisher Lulu Press, which complied. Battle then contacted the trust, it says, to seek its publishing permission, which was denied. In 2007, Battle published Women of Darkover, which expanded upon and included 'Molly of Darkover' in its entirety. It’s worth noting that the trust filed its Darkover trademark application on Aug. 10, 2009, and was granted it on March 23, 2010. In September, 2011, it then sent take-down notices to “all websites selling Defendant Battle’s Darkover novels.” However, 'Women of Darkover' is still available in certain corners of the web. The trust’s suit against Battle — whose response has not made it to the web yet — asserts both copyright infringement and trademark infringement. A key component of the Darkover complaint is the trust’s assertion that Battle’s novels are of “inferior quality,” raising at least two questions: 1) Where does fan fiction stop and infringement begin? and 2) Would there be a complaint if the trust felt the disputed works were of equal or superior quality to the original?"[5]

Impact on Fanfic

On February 16, 2012, Elisabeth Waters, a co-trustee of MZB's trust, posted a publicly viewable comment on AO3 regarding a fan's The Catch Trap fanfic. The timing may not be a coincidence:

Unless this is intended as satire, it is an unauthorized derivative work. The right to PREPARE a derivative work, let alone post it on the Internet, is reserved to the copyright holder, which would be the Marion Zimmer Bradley Literary Works Trust. They have been known to file suit for this behavior, so if I were you, I'd take this down--at least until you can rewrite it do that it has nothing to do with The Catch Trap.[6]

Also See

References

  1. As of February 2012, the books are no longer being sold. Only used copies and book/publisher information are still being listed at various booksellers' websites. The exact date that the books were removed from public sale has yet to be determined.
  2. Marion Zimmer Bradley Literary Works Trust et al v. Battle at Justia.com. The settlement terms are not listed in the Justia.com court filings.
  3. 3.0 3.1 http://www.entlawdigest.com/2012/01/09/Phil%20-%20Darkover.pdf
  4. Clearly an error, as Sharp is one of the plaintiffs.
  5. Biederman Blog: A literary genre that may be a lawyer’s fantasy by Ashley Smolic, posted January 23, 2012, accessed February 17, 2012; WebCite.
  6. Elisabeth Waters. Comment on Indistinct Knowlege by Katherine. The story is a fanfiction story that is a fusion of the MZB novel The Catch Trap with A Companion to Wolves, and was written for Psychic Wolves for Lupercalia. (Accessed 18 February 2012)


Related Concepts, Fandoms, Terms, Fanworks
See also Marion Zimmer Bradley Fanfiction Controversy