Thoughts on the Nora Roberts Copyright Infringement Lawsuit Against Cristiane Serruya

Last week, the news broke that Nora Roberts, famed American author of more than 200 romance novels, has sued Cristiane Serruya, who lives in Rio de Janeiro, for copyright infringement in the Brazilian court system. The facts at the heart of this case came to light in February, when readers discovered similarities between Serruya’s work and Roberts’s work. These similarities surfaced during a public discussion of Serruya’s likely unethical—and potentially illegal—behavior affecting many authors, including best-selling author Courtney Milan, who sounded the alarm in a blog post entitled, Cristiane Serruya is a Copyright Infringer, a Plagiarist, and an Idiot.

On February 22, 2019, in Plagiarism, Then and Now, Roberts promised to help the authors harmed, saying: “If we determine Serruya’s theft of my work reaches the bar of infringement, I will sue. I can afford to while many of her victims can’t.”

With the filing of the litigation in Brazil, a court now has an opportunity to decide whether Serruya’s actions regarding Roberts’s copyrighted work “reaches the bar of infringement.”

As Roberts’s statement suggests, not all plagiarism amounts to copyright infringement in violation of the law. In the United States, it’s legal to copy elements that are in the public domain, and it’s also legal to copy small amounts of copyrighted work. The latter form of plagiarism may be unethical, especially when it’s done without attribution, but unethical behavior isn’t necessarily illegal behavior. The goal of copyright law is to prevent more substantial examples of duplication of copyrighted works. In the United States, a small amount of similar language may not be copyright infringement at all, or if it is infringement, it could be excused as fair use. Copyright Act of 1976, Section 107; see also S. Balganesh & I. Manta, Judging Similarity, 100 Iowa L. Rev. 267 (2014).

Roberts’s lawsuit is filed in Brazil, and I am not familiar with the law there. Based on secondary sources, Brazilian copyright law seems to bear some similarity to American law but also diverges from it in significant ways.

According to Copyright Litigation in Brazil: Overview, by José Mauro Decoussau Machado and Matheus Chucri dos Santos: “The owner [of the copyright] must prove by evidence… that the alleged infringer used or reproduced, partially or entirely, the protected work. Therefore, substantial similarity is sufficient to establish infringement.”

Without a copy of Roberts’s complaint, which is probably in Portuguese (a language I wish I could read!), I can’t say much about the allegations. The AP article on this matter describes the filing like this: “In papers filed Wednesday morning in Rio de Janeiro, where Serruya lives, Roberts called Serruya’s romance books ‘a literary patchwork, piecing together phrases whose form portrays emotions practically identical to those expressed in the plaintiff’s books.’”

I don’t know if this description is artistic license or if copying “emotions” can be the basis for a copyright infringement lawsuit in Brazil.

In the United States, general ideas aren’t copyrightable, and emotions are probably too general for protection in most cases. However, when American courts assess infringement cases, many look at whether the alleged infringement has a substantially similar “total concept and feel” to the pre-existing work. See, e.g., Penguin Random House et al. v. Colting, 270 F.Supp.3d 736 (S.D. N.Y. Sept. 7, 2017); see also Does a Kid in Your Life Want a Kinderguide? Too Bad.

For Roberts, though, it seems like the allegations include word-for-word copying, which is a more direct form of potential infringement than copying the “total concept and feel” of a pre-existing work. According to The Guardian:

In her novel Untamed, Roberts writes: “Leisurely, he began to loosen her hair, working his fingers through it until it pooled over her shoulders. ‘I’ve wanted to do that since the first time I saw you. It’s hair to get lost in.’”

In Forevermore, Serruya includes the passage: “Leisurely, he began to loosen her hair, working his fingers through it until it pooled over her shoulders and cascaded down over her back. ‘I’ve wanted to do that since the first time I saw you.’”

Those passages are very similar, and I can see why the similarity would infuriate Roberts. What I wonder is how many of the passages in Serruya’s work are similar to Roberts’s work, and what percentage of the whole work the plagiarized portions are. According to Serruya, who blamed ghostwriters for the similarities, “My books are big. In a book of 120,000 words it’s difficult to know how many supposedly came from a work of Nora Roberts.”

If it turns out that the plagiarized portions amount to a relatively small percentage of each book—and again, I don’t have the complaint—it might not be infringement, at least under U.S. law. See Crane v. Poetic Products Limited, 593 F.Supp.2d 585 (S.D. N.Y. Jan. 8, 2009) (holding that a play was not “substantially similar” to a pre-existing book even when there was an example of virtually identical language because it was an “infinitesimal portion” of each work).

I don’t know whether Brazilian law is similar, but according to José Mauro Decoussau Machado and Matheus Chucri dos Santos (linked above), while Brazilian law does not recognize a fair use defense, “the reproduction, in any work, of short excerpts of pre-existing work” is not infringement “provided that the reproduction is not the principal objective of the new work and does not adversely affect the normal exploitation of the work reproduced, or cause unjustified harm to the legitimate interests of the authors.”

Does Serruya’s plagiarism adversely impact the sales of Roberts’s book? At a minimum, Serruya has siphoned readers of romance away from other books, including books written by Roberts.

Another interesting question, depending on what the facts turn out to be, is what happens if Serruya’s books consist of multiple acts of plagiarism with passages lifted from many authors but only a small portion from each? I wonder how the law would treat that kind of “collage.” Under American law, collages are sometimes “fair use.” See Blanche v. Koons, 467 F.3d 244 (2d Cir. 2006) (abridged PDF).

We’ll see how the Brazilian court applies their country’s law to the facts of Nora Roberts’s case. Whatever the outcome, Roberts has already sent an important message to future plagiarizers by filing this lawsuit. As she said on her blog:

To those publishing ‘books’ using these tactics, whether it’s hiring ghosts then slapping your name on a book, whether it’s stealing work someone else sweated over, you’re thieves and liars. Every one of you. And none of you will ever be a writer.

You know who you are.

Enjoy it while it lasts, because it’s now my mission to turn over the rocks you hide under, then stomp you deep in the muck you breed in.

To the black hats who exploit, steal, tutor others to do the same, your day of reckoning’s coming.

I swear I’ll do whatever I can, use whatever resources, connections, clout, megaphone I have to out every damn one of you.

As Roberts has shown, litigation may result from the use of unethical and potentially illegal tactics in book publishing, especially when the affected authors are well-known and widely read. Unfortunately, though, less well-known authors remain easy targets for “infringers, plagiarizers, and idiots” (to borrow a few words from Courtney Milan).

UPDATE: On April 30, 2019, Nora Roberts provided a translation of an article in Brazil (from O Estado de S. Paulo não) about an update in the case: The Court “ordered the suspension of the sale of the physical books, e-books and audiobooks of Royal Love, Royal Affair, Unbroken Love, Hot Winter, Forevermore and From the Baroness’s Diary, and the inclusion on the cover and links made available on Amazon, Saraiva, Cultura, Barnes & Noble, Kobo and E-Bay websites of the words “suspended by court order”. [To read the full article, with a link to the original, click here]