IP Law Daily, COPYRIGHT—S.D.N.Y.: 'Crave' series author and publisher awarded attorney fees after prevailing in copyright case, (Jul 29, 2026)

By Ravindra Kumar Singh, B.L.

A romance novelist's copyright infringement claims were objectively unreasonable because they relied largely on unprotectable tropes, ideas, and commonplace phrases.

A federal district court in New York has awarded attorney fees and costs to the author, publisher, literary agent, and film studio that defeated a copyright infringement lawsuit accusing the bestselling Crave young-adult fantasy novels of copying an unpublished manuscript. Finding that the infringement claims were objectively unreasonable from the outset and were pursued through bad-faith litigation tactics, the court held that the defendants were entitled to recover their fees under Section 505 of the Copyright Act. The court also ordered the plaintiff to post a $150,000 appellate bond but declined to require a separate $3.4 million bond securing any future fee award (Freeman v. Deebs-Elkenaney, No. 2:22-cv-02435-CM-SN (S.D.N.Y. Jul. 28, 2026)).

The dispute. Author Lynne Freeman brought the litigation against novelist Tracy Deebs-Elkenaney, who writes under the pen name Tracy Wolff, literary agent Emily Silvan Kim, Prospect Agency LLC, publisher Holtzbrinck Publishers, LLC, doing business as Macmillan, Entangled Publishing LLC, and Universal City Studios LLC. Freeman alleged that the defendants copied her unpublished manuscripts while developing the Crave series. In March 2026, however, the district court granted summary judgment for the defendants after concluding that no reasonable jury could find the works substantially similar under Second Circuit copyright law (see Tracy Wolff’s Crave series found not to infringe copyright of unpublished novels, (Mar. 18, 2026). Following that ruling, the defendants sought attorney fees and costs under 17 U.S.C. §505, together with security for anticipated litigation and appellate costs.

Objective unreasonableness. In deciding whether to award fees, the court applied the nonexclusive factors identified by the U.S. Supreme Court in Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994), and Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197 (2016), including frivolousness, objective unreasonableness, motivation, and the need to advance compensation and deterrence.

The court concluded that Freeman's copyright claim was objectively unreasonable because nearly every alleged similarity concerned material that copyright law does not protect. Many purported similarities consisted of commonplace romantasy tropes and scènes à faire that Freeman's own expert acknowledged were common throughout the genre. When the court compared how those ideas were actually expressed, the works differed substantially.

Other alleged similarities rested on ordinary words and common expressions, including phrases such as "well, well, well," "pang of disappointment," and "things that go bump in the night." Citing Arica Institute, Inc. v. Palmer, 970 F.2d 1067 (2d Cir. 1992), the court reiterated that such commonplace language is not copyrightable. Still other alleged similarities involved abstract ideas rather than protected expression. For example, Freeman argued that both works featured a romantic love triangle, even though that concept appeared only in planning notes for unwritten sequels rather than in her manuscripts. Under Kregos v. Associated Press, 3 F.3d 656 (2d Cir. 1993), copyright protects only the expression of ideas, not the ideas themselves.

Works compared. The court further emphasized that any similarities involving protectable expression were trivial and overwhelmingly outweighed by the profound differences between the parties' works. After reading all of Freeman's manuscripts and Wolff's published novels, it concluded that the works differed dramatically in their substance, style, structure, tone, mood, length, and overall creative expression.

Rejecting Freeman's reliance on isolated similarities, the court noted that Second Circuit precedent requires courts to examine the "total concept and feel" of the works rather than engage in a "scattershot" comparison of individual details. Quoting Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996), the court explained that random similarities cannot establish substantial similarity because the proper inquiry is whether an ordinary observer would regard the works as substantially similar as a whole. It also cited Mallery v. NBC Universal, Inc., 331 F. App'x 821 (2d Cir. 2009), where "profound" and "obvious" dissimilarities justified dismissal of a copyright claim. According to the court, Freeman's claim lacked any factual or legal basis once the works were compared side by side.

Bad faith. Beyond the weakness of the infringement claim itself, the court found that Freeman and her counsel engaged in extensive bad-faith litigation conduct. Despite basing the lawsuit on dozens of unpublished manuscripts, they delayed producing the allegedly infringed works for months and initially refused to provide them because they did not want the defendants to use the manuscripts in support of a motion to dismiss. The court characterized that explanation as an improper attempt to prevent the defendants from obtaining an early merits determination that could have avoided years of expensive litigation.

The court also criticized Freeman for repeatedly failing to identify which specific manuscripts formed the basis of her claims despite multiple court orders, at one point attempting to rely on more than 5,500 pages of unspecified material while reserving the right to add further works later. It further found that several of Freeman's descriptions of her own manuscripts inaccurately portrayed characters and settings in an effort to manufacture similarities with the Crave novels. The court concluded that the record was "replete with bad faith litigation conduct."

Compensation and deterrence. Turning to the remaining Section 505 factors, the court concluded that an award would further the Copyright Act's goals of compensation and deterrence. Requiring the defendants to bear the substantial expense of defending objectively unreasonable claims would undermine the statute's purpose of encouraging meritorious copyright defenses. The court rejected Freeman's argument that the case presented novel copyright issues, describing it instead as a "garden variety literary copyright case" that was resolved through an ordinary side-by-side comparison of the works.

Although the court granted the defendants' request for attorney fees, it declined to require Freeman to post the requested $3.4 million security bond because the amount of any fee award had not yet been determined. It instead directed the defendants to submit detailed billing records supporting their fee request. However, finding a significant risk that appellate costs would not be paid if the appeal failed, the court ordered Freeman to post a $150,000 bond under Federal Rule of Appellate Procedure 7.

The Case is No. 2:22-cv-02435-CM-SN.

Judge: McMahon, C.

Attorneys: Mark D. Passin (Reeder McCreary) for Lynne Freeman. Amy Lee Nashon (TroyGould) for Tracy Deebs-Elkenaney.

Cases: Copyright NewYorkNews GCNNews