Freeman v. Deebs-Elkenaney

District court grants bestselling ‘romantasy’ author’s motion for attorneys’ fees, finding plaintiff writer’s copyright claims met unreasonableness standard and her conduct and that of her counsel were in “extreme bad faith.”

Plaintiff Lynne Freeman, a writer, brought copyright infringement claims against bestselling author Tracy Deebs-Elkenaney (who publishes under the pseudonym Tracy Wolff), Entangled Publishing LLC, literary agent Emily Sylvan Kim, Prospect Agency LLC, Holtzbrinck Publishers LLC and Universal City Studios LLC, alleging that Wolff’s four-book “romantasy” Crave series infringed Freeman’s copyrights in her unpublished works. Judge Colleen McMahon in March 2026 granted summary judgment in favor of defendants on Freeman’s copyright infringement claims, finding—based on her reading of thousands of pages of the Crave books and plaintiff’s works—that no reasonable trier of fact could conclude that Wolff’s bestselling series was substantially similar to plaintiff’s unpublished young adult paranormal romance novel. Judge McMahon reasoned that any similarities between the two works were limited to unprotectable tropes and scènes à faire common to the young adult romantasy genre. (Read our summary of the court’s decision here.)

Following the court’s grant of summary judgment, defendants moved for an award of attorneys’ fees and costs, which they estimated to be $3.4 million. Freeman filed a notice of appeal the next day, and the court stayed consideration of defendants’ motion pending the appeal.

Defendants thereafter moved for an order requiring Freeman to post a bond of $3.4 million to secure payment of an eventual fee award and $150,000 to cover anticipated attorneys’ fees and costs related to the appeal. The court granted the motion in part, lifting the stay, awarding defendants fees and costs to be determined and ordering defendants to provide documentation and a request for a specific amount within 10 business days.

In granting the motion, the court applied the nonexclusive factors articulated in the U.S. Supreme Court’s opinion in Kirtsaeng v. John Wiley & Sons, Inc.—frivolousness, motivation, objective unreasonableness, and the need to advance considerations of compensation and deterrence—and concluded that the totality of the circumstances warranted an award.

On objective reasonableness, the court held that Freeman’s claims of substantial similarity had “no basis in fact or law” and were “objectively unreasonable from the outset.” McMahon emphasized that virtually all the similarities on which Freeman based her claim concerned unprotectable elements and that while Freeman acknowledged (and the court repeatedly advised) that her claims were subject to the “total concept and feel” standard governing substantial similarity in the Second Circuit, plaintiff’s briefing instead focused almost entirely on discrete bits of scattered similarities.

On bad faith, the court found that the record was “replete with bad faith litigation conduct.” Freeman and her counsel withheld the allegedly infringed manuscripts for months after filing the complaint, despite the manuscripts plainly falling within the mandatory initial disclosure requirements of the Federal Rules. Judge McMahon chastised plaintiff and her counsel for (1) expressly declining to produce the manuscripts, for the “manifestly improper” purpose of preventing defendants from bringing a motion to dismiss, and (2) creating other intentional delays by refusing to produce or identify the works on which her claims were premised. The court also concluded that many of the similarities Freeman alleged relied on misleading characterizations and descriptions of her works that were “wholly untethered to the works themselves.” Judge McMahon, classifying this yearslong pattern of misconduct as “extreme bad faith,” wrote that she could not recall in almost 28 years on the federal bench an instance in which bad faith was so easily established.

Judge McMahon also found an issuance of attorneys’ fees would similarly advance the issue of compensation and deterrence and declined plaintiff’s invitation to consider the relative finances of the parties in determining whether to grant an award of attorney’s’ fees. Declining to issue a specific award amount, the court directed defendants to submit an itemization of fees with supporting documentation. Judge McMahon denied defendants’ request that Freeman post a bond of $3.4 million in anticipation of an eventual fee award, reasoning that she couldn’t force that bond since she hadn’t awarded that amount yet. The judge did, however, order that Freeman post a bond of $150,000—the amount that defendants estimated they would incur on appeal—reasoning that she had no doubts regarding the outcome of Freeman’s appeal.

Summary prepared by David Grossman and Oliva Holmes