A recent decision from the Southern District of New York offers one of the most detailed modern analyses of substantial similarity in the increasingly popular young adult fantasy/“romantasy” space.
The case arose from a dispute between an unpublished author and the creator of a commercially successful paranormal romance series. The plaintiff alleged that her manuscripts—shared years earlier with a literary agent—were copied in the defendants’ novels. The court, however, granted summary judgment for the defendants, concluding that no reasonable jury could find substantial similarity of protectable expression.
The opinion is notable not just for its outcome, but for its methodical breakdown of what copyright law does not protect.
Link to The Setup: Similar Stories, Shared Genre DNA The Setup: Similar Stories, Shared Genre DNA
The plaintiff authored multiple drafts of a young adult paranormal romance novel centered on a teenage girl in Alaska who discovers she is a hybrid supernatural being with a pivotal role in a larger cosmic conflict.
Years later, the defendant author—represented by the same literary agent during overlapping periods—published a successful series involving a teenage girl who relocates to Alaska, enters a supernatural world, and ultimately discovers she too has a unique identity tied to a broader struggle between powerful forces.
The similarities, at a high level, are undeniable:
But as the court emphasized, similarity alone is not enough.
Link to The Legal Framework: Filtering Before Comparing The Legal Framework: Filtering Before Comparing
The court applied the Second Circuit’s “more discerning ordinary observer” test, which requires courts to:
- Filter out unprotectable elements (ideas, tropes, scènes à faire); and
- Determine whether the remaining protectable expression is substantially similar.
This filtration step proved dispositive.
Even assuming access and some degree of copying, the court held that what was allegedly copied consisted almost entirely of unprotectable genre conventions.
Link to The Court’s Central Holding The Court’s Central Holding
After reviewing thousands of pages of material, the court concluded:
The similarities between the works “concern only noncopyrightable elements,” and no reasonable trier of fact could find substantial similarity.
In other words: The defendants may have drawn from similar genre specific themes and tropes—but they did not copy protected expression.
Link to A Detailed Roadmap of What Is Not Protectable A Detailed Roadmap of What Is Not Protectable
One of the most valuable aspects of the opinion is its comprehensive identification of tropes and scènes à faire in the young adult fantasy/romantasy genre. These are elements that flow naturally from the genre and therefore cannot be monopolized by any one author.
Below is a consolidated list drawn from the court’s analysis.
Link to 1. Core Genre Tropes 1. Core Genre Tropes
- A teenage protagonist
- A heroine who initially believes she is ordinary or human
- The “Chosen One” narrative
- A central role in a battle between good and evil
- A coming-of-age arc tied to supernatural destiny
Link to 2. Character Archetypes 2. Character Archetypes
- The “new girl” or outsider protagonist
- The brooding, attractive supernatural male lead
- The popular “mean girl” rival
- The loyal best friend
- Surrogate parents or guardians
- Romantic rivals
Link to 3. Plot Devices and Narrative Structures 3. Plot Devices and Narrative Structures
- Relocation to a new environment (often after trauma)
- Death or absence of one or both parents
- Kidnapping or abduction of the heroine
- Rescue sequences
- Training or learning to control powers
- Quests or missions
- Rival factions or warring groups
- Revenge-driven antagonists
- Secret societies
- Magical or supernatural trials
- Escalating challenges leading to final confrontation
Link to 4. Romantic and Relationship Tropes 4. Romantic and Relationship Tropes
- Instant attraction between protagonist and romantic lead
- The romantic lead being dangerous, mysterious, or forbidden
- Emotional tension tied to supernatural identity
- Love triangles (including those involving rivals or siblings)
- The “epic” or transformative first kiss
- Romantic bonds intensified by supernatural connection
Link to 5. Setting-Based Scènes à Faire 5. Setting-Based Scènes à Faire
- A school setting (including boarding schools)
- Schools populated by supernatural beings
- Remote or isolated locations
- Gothic or castle-like environments
- Parallel or alternate worlds
Link to 6. Supernatural and Fantasy Elements 6. Supernatural and Fantasy Elements
- Vampires, witches, werewolves, shapeshifters, dragons, demons
- Hybrid or mixed-species characters
- Magical artifacts or objects
- Curses and prophecies
- Ancient myths and folklore woven into the story
- Secret rules governing supernatural communities
- Balance between opposing supernatural forces
Link to 7. Common Narrative Events and Scenes 7. Common Narrative Events and Scenes
Link to 8. Psychological and Emotional Themes 8. Psychological and Emotional Themes
- Anxiety or emotional distress
- Grief following loss of a parent
- Identity confusion
- Fear of newfound powers
- Isolation followed by integration into a new community
Link to Why the Plaintiff’s Case Failed Why the Plaintiff’s Case Failed
The plaintiff attempted to rely on a detailed catalog of similarities between the works. The court rejected this approach as a “scattershot” comparison—a method that identifies overlapping elements without accounting for their unprotectable nature.
Even the argument that the combination of elements was unique failed. While copyright can protect original selection and arrangement, the court found that the plaintiff’s work merely combined standard genre components in familiar ways.
Finally, when viewed holistically, the “total concept and feel” of the works differed in meaningful ways, including structure, pacing, character development, and narrative progression.
Link to Key Takeaways Key Takeaways
Link to 1. Genre Conventions Are Free to Use 1. Genre Conventions Are Free to Use
Authors cannot claim ownership over the building blocks of a genre—even if those elements appear in similar combinations.
Link to 2. Similarity Must Be in Expression, Not Ideas 2. Similarity Must Be in Expression, Not Ideas
Courts will rigorously filter out unprotectable elements before comparing works.
Link to 3. Lists of Similarities Are Not Enough 3. Lists of Similarities Are Not Enough
Copyright claims fail when they rely on cherry-picked overlaps rather than holistic analysis.
Link to 4. “Total Concept and Feel” Still Matters 4. “Total Concept and Feel” Still Matters
Even where individual similarities exist, courts will evaluate the overall aesthetic and narrative experience.
Freeman v. Wolff reinforces a fundamental principle of copyright law: Creativity is protected—but convention is not.
For writers, this decision provides reassurance that working within a genre does not expose them to liability. For litigators, it offers guidance on what likely will not support substantial similarity claims.
And for anyone operating in the entertainment and publishing industries, it serves as a reminder that while stories may share familiar DNA, copyright protects how a story is told—not the ingredients it uses.