Freeman v. Deebs-Elkenaney

District court grants defendants’ motion for summary judgment holding that no reasonable trier of fact could find works substantially similar because similarities between plaintiff’s unpublished young adult paranormal romance novel and defendants’ bestselling Crave series were limited to unprotectable tropes and scènes à faire common to the young adult romantasy genre.

Plaintiff Lynne Freeman brought copyright infringement claims against 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LLC and Universal City Studios LLC, alleging that Wolff’s four-book Crave series infringed Freeman’s copyrights in her unpublished novel drafts. Freeman also asserted additional state law claims (fraud, fraudulent concealment, breach of contract and breach of fiduciary duty) against Prospect Agency and Kim, but the claims were dismissed in a prior order.

Freeman authored six drafts and nine sets of notes for a young adult paranormal romance novel titled Blue Moon Rising and later Masqued, featuring a teenage girl in Alaska who discovers she is a tripartite paranormal creature—part witch, part shapeshifter, part demon—destined to resolve an ancient conflict between the forces of Shadow and Light. Freeman registered the unpublished drafts and notes with the U.S. Copyright Office. Wolff’s Crave series similarly features a teenage girl, Grace Foster, who relocates to a remote boarding school in Alaska populated by supernatural beings and discovers her own unique paranormal heritage.

Kim was Freeman’s literary agent from 2010 to 2014, and during their professional relationship, Freeman sent Kim at least 10 to 15 drafts and copies of her notes, and Kim sent at least one version of Freeman’s manuscript to Stacy Abrams at Entangled, the publisher of the Crave series. Kim also represented Wolffe during that time, and Freeman alleged that Kim, Abrams and Entangled CEO Elizabeth Pelletier assisted Wolff in writing the Crave novels, pointing to Wolff’s own deposition testimony describing the series as a “group project.” Although Abrams denied ever reading the manuscript and there was no evidence in the record that Wolff saw Freeman’s drafts, for purposes of the summary judgment motion, the court assumed both access and probative similarity, limiting the inquiry solely to substantial similarity.

The case has a lengthy procedural history. Freeman commenced the action in March 2022, and the case was originally assigned to Judge Louis L. Stanton, with pretrial matters referred to Magistrate Judge Sarah Netburn. Magistrate Judge Netburn recommended denying both parties’ cross-motions for summary judgment on the copyright claim but expressly declined to reach the issue of substantial similarity. Judge Stanton adopted the recommendation as modified but likewise did not engage in any substantive analysis of substantial similarity, instead stating that all issues should go to a jury. After the case was reassigned to Judge McMahon in September 2025, who, after personally reading all six of Freeman’s drafts and nine sets of notes and all four Crave novels (upward of 6,000 pages of romantasy text), directed the parties to submit new cross-motions on the issue of substantial similarity—the sole issue never previously addressed on the merits.

Freeman argued as a threshold issue that the law of the case barred reconsideration of summary judgment, but the court disagreed, holding that neither prior judge had made any merits-based determination on substantial similarity and that, in any event, a successor judge retains the power to grant summary judgment notwithstanding a prior denial.

Freeman also argued that her drafts should be aggregated for the purposes of the analysis, and the court agreed in part, finding that the first five drafts (BMR 2010, BMR 2011 and Masqued 2012, 2013 and 2014) could be considered together because they followed a common story template, but held that the sixth draft (Masqued 2016) differed so substantially that it required separate analysis. The court rejected Freeman’s broader aggregation theory, finding no support in the Copyright Act or case law for treating multiple unfinished drafts of a single novel as a unified work for purposes of the substantial similarity analysis.

Applying the Second Circuit’s “more discerning ordinary observer” test, the court analyzed the works across the standard substantial similarity factors—theme, setting, characters, plot, sequence, pace and total concept and feel. Expert testimony was considered only for identifying common tropes in the genre.

As to themes, the court found that both works shared broad thematic similarities—a displaced teenage girl who discovers her supernatural identity, falls in love with a paranormal boy and plays a key role in resolving an ancient supernatural conflict—but held these were unprotectable tropes common to the young adult romantasy genre. Both parties’ experts agreed that numerous elements were scènes à faire, including the heroine being the “Chosen One,” the school setting with supernatural creatures, lost parents and love triangles.

Regarding setting, the court held that both works taking place in Alaska high schools was not protectable because Alaska is a public place and setting a teen novel in a high school is a common genre convention. The court further noted dramatic differences: Freeman’s story takes place at a public high school in Anchorage and its surrounding bars, bookstores and restaurants, while Wolff’s is set in an elite boarding school housed in a gothic castle in the remote Alaskan wilderness with additional elaborate settings of paranormal royal courts spread across the globe.

On characters, the court found that while both works feature heroines with supernatural abilities and love interests who are paranormal creatures—at a macro level what one would expect of characters in a teen romantasy novel—the “totality of attributes and traits” of the characters differed materially. The court noted, for example, that Freeman’s heroine is a witch/shifter/demon who does not fly, while Wolff’s is a gargoyle/witch who does fly; that Freeman’s romantic lead is a sun-kissed Viking shapeshifter with no posse, while Wolff’s is a dark, brooding vampire prince with a posse; and that the Crave series features a fully developed love triangle with a second romantic lead and competition between “born” and “made” vampires that has no counterpart in Freeman’s work. The court rejected the notion that a heroine who takes advanced classes, quotes great works of literature, loves reading and discusses French philosophers was protectable, noting that the character Hermione from Harry Potter also exhibited those traits. The court also noted that the heroine having a biracial, gay male friend was not copyrightable.

As to plot and sequence, the court found that while both works involve a displaced girl discovering her supernatural heritage and falling in love with a romantic lead, the detailed expression of these plot elements diverged significantly. Freeman’s novel concerns the heroine’s relationship with her mother and the discovery that her deceased father was alive and her failed attempt to free him from an evil demon. By contrast, Crave’s heroine’s parents remain deceased throughout and the series includes plot lines with no counterpart in Freeman’s work, such as a vampire prince trapped in the heroine’s head, a love triangle involving two vampire prince brothers, the death or wounding of some of the heroine’s friends, an army of gargoyles and an escape from prison.

The court also rejected Freeman’s alternative theories of liability under “comprehensive nonliteral similarity” and “fragmented literal similarity.” As to the former, the court held that the factors Freeman identified for this test were the same factors analyzed under the standard “more discerning ordinary observer” test. As to fragmented literal similarity, the court found it inapplicable because the language fragments Freeman identified—phrases such as “things that go bump in the night,” “my blood freezes in my veins” and “like a sack of potatoes”—were ordinary words and common phrases not subject to copyright protection. The court also rejected Freeman’s theory that the asserted similarities, taken collectively, produced a protectable selection or arrangement that Crave appropriated.

The court concluded that the total concept and feel of the works were “vastly different in substance, style, structure, length, tone and mood” and that no reasonable factfinder could conclude the works were substantially similar. The court rejected plaintiff’s reliance on similar “bits and pieces” and “scattered details” aggregated across works of extended length targeting the same genre and audience. Freeman’s novel, paced over two months, was characterized as “dark, mystical, foreboding and solemn,” with a heavy emphasis on occult symbolism such as Tarot cards, while the Crave series featured a sarcastic, humor-driven narrative voice and fast-paced action sequences taking place over the course of the entire academic year. The court also noted the dramatic difference in length—Freeman’s single unpublished novel spanned roughly 300 – 350 printed pages versus Crave’s 2,750-plus printed pages across four novels—as further undermining any finding of substantial similarity.

The court separately analyzed Masqued 2016 and concluded it also bore “no substantial similarity” to the Crave novels, finding that the final draft abandoned most of the characters and plot elements from the earlier template drafts and was so incomplete that meaningful comparison was “virtually impossible.”

The ruling effectively disposes of Freeman’s related cases against Barnes & Noble, Apple, Amazon, Target and Walmart for contributory infringement based on retail sales of the Crave novels, though the stays in those actions will remain pending any appeal. The court also directed defendants in a separate, newly filed action concerning the fifth and sixth Crave novels (Charm and Cherish) to file dispositive motions on substantial similarity within 30 days.

Summary prepared by David Grossman and Jeff Prystowsky