The Crave Series Copyright Case: Interesting for Many Reasons except Copyright

I can think of few undertakings as expensive for an author as launching a copyright lawsuit without the benefit of a publisher. Such cases must be litigated in federal court (with an exception for small claims), and the average cost is in the hundreds of thousands of dollars. Moreover, copyright infringement can be difficult to prove unless it’s a matter of straightforward piracy or copying. (And some cases of infringement are in fact issues of plagiarism, which is an ethical error, not a legal one.)

That’s not to say there aren’t plenty of merited copyright infringement cases. J.K. Rowling sued over the planned publication of a lexicon that would’ve arguably been a derivative work of the Harry Potter series. (She won.) Margaret Mitchell’s estate sued over the publication of The Wind Done Gone, a retelling of Gone with the Wind from the perspective of enslaved characters. Mitchell’s estate lost because the book was considered a parody and protected under fair use.

Profitable fiction today—romance and romantasy—relies on popular tropes, and some copyright cases now raise questions about what, exactly, gets protection. Copyright law in the US doesn’t protect ideas (or tropes), only tangible expression of ideas, and for writers that means written words on the page or screen. Several years ago, the New York Times offered an in-depth look at lawsuits happening in the wolf-kink erotica community, where two authors had created very specific fantasy scenarios that were almost identical. What are the chances, you might wonder? But both writers had built their plots with elements from a fan-generated body of literature known as the Omegaverse. Ultimately, the courts dismissed the claims. (Learn more here.)

A similar case is playing out now, although this time it involves a much higher-profile publisher, a literary agent, and Universal City Studios.

In March 2022, author Lynne Freeman filed a lawsuit against author Tracy Wolff, agent Emily Sylvan Kim, and Entangled Publishing, among others, alleging that Wolff’s Crave series infringes upon her unpublished manuscript. Freeman claims that her work, submitted to Kim in 2010, shares significant similarities with Wolff’s series, published in 2020. Notably, Kim is also Wolff’s literary agent.

Like the wolf-kink erotica case, this case highlights the challenges of proving copyright infringement when both works draw from common genre tropes. As of this writing, the lawsuit remains active, with ongoing legal proceedings. Author Courtney Milan, a former Supreme Court law clerk who often comments on these types of cases, discussed the filings on X in summer 2024 and doesn’t see a strong infringement case. (Her X account is now locked, but you can read excerpts at File 770.) I won’t repeat her reasons here, but to this non-lawyer, they certainly seem like good ones.

That said, when I read Freeman’s complaint, I was struck by something entirely different: the author-agent relationship. And here we come to areas of the lawsuit unrelated to copyright infringement: claims of breach of contract and breach of fiduciary duty by the literary agent, as well as allegations of fraud and deceit and fraudulent concealment.

As mentioned, Freeman was represented by Emily Sylvan Kim of Prospect Agency, also named in the lawsuit. Here’s how things played out, according to the complaint. (This is a very brief summary; it’s worth reading the filing in full to understand just how involved the relationship was.)

• Author Lynne Freeman signs with Kim in 2010. Kim tells Freeman that she likes her YA paranormal romance manuscript and “only a few minor changes would be required before the book would be ready to send to other publishers.”
• Despite that initial assessment, Freeman spends three years working on the project under Kim’s direction, revising and creating new material, producing chapter outlines, chapter summaries, synopses, query letters, etc. Freeman produces, in all, 45 versions of the manuscript.
• At various points in the process, Kim says encouraging things to Freeman, like the project could essentially be the first big commercial success for her agency, or that she doesn’t have lengthy phone calls with any of her other clients like she does with Freeman. At one point, Kim emails Freeman, “You’ve been a real pro throughout this revision process so I’d figure you’d want to really wade in those final slogging steps and be rewarded with true greatness.”
• Kim introduces Freeman to author Tracy Wolff at the Romance Writers of America conference in 2012.
• By late 2013, Kim tells Freeman they are at the end of the road because there are no further publishers to whom she can send the book. Kim does suggest Freeman consider writing contemporary romance or erotica, but Freeman is not interested and the relationship ends.

In 2013, Freeman sent her unpublished manuscript to Entangled, the publisher of the Crave series. In a response to the original complaint, Entangled admits to receiving it but denies the infringement claims made by Freeman. Entangled says the idea for the Crave series, which started releasing in 2020, came from publisher Liz Pelletier: She wondered what would happen if you crossed Hogwarts with Twilight and created a school for vampires. More specifically, according to Entangled: “Crave book series was a collaborative project with Pelletier providing to Wolff in writing the main plot, location, characters, and scenes, and actively participating in the editing and writing process.”

Such an arrangement is typically called book packaging. In a nutshell, book packagers originate concepts they believe are marketable, then work with writers and other professionals to execute proposals or manuscripts based on those ideas, creating intellectual property. That IP is usually owned by the book packager but could belong to the publisher or to a variety of players involved in the process.

Sometimes publishers come up with ideas, then enlist book packagers to get the projects done; sometimes packagers pitch publishers on their own ideas; sometimes employees of publishing houses are tasked with creating projects based on original IP or for existing licenses and assigning them to writers on a work-for-hire basis. Packagers work in all genres and categories, everything from cookbooks to children’s books to genre series to high-profile franchises (like Marvel). A frequently cited example of a book packager is Alloy Entertainment, run by Warner Brothers. Another is Electric Postcard Entertainment.

To gain clarity on what is normal (or not normal) in the world of book packaging, I spoke to editor and book packager Mary Kole of the Good Story Company and Bittersweet Books. She is also a former agent.

Kole explains that agents can be involved in book packaging in a number of ways: They can help publishers find writing talent for an in-house owned series (think: Nancy Drew, Sweet Valley High), they can help match their authors with opportunities from book packagers or publishers, or they can even do some book packaging themselves. As it turns out, Kim owns et al Creative, “a literary production company with a vision to package breakout, front list print titles targeted to film and new media.” According to New Jersey state records, the firm was established in 2016, after Kim and Freeman parted ways.

While the large majority of books published today are created in the traditional manner—an author writes a book, the agent represents it, the book sells (or doesn’t)—agents are also on the front lines of the market, seeing what publishers want or don’t want and noticing what ideas are salable if they could only find the right talent to execute them. This is one reason why, Kole tells us, she left agenting and started her editorial services firm and book packaging company. “A certain kind of publishing professional enjoys waiting for the perfect project, conceptualized and executed entirely by one writer, to come in on submission. I am not that kind of person. I wanted to play a direct role in turning my understanding of the market into book concepts and collaborating with writers to make these a reality. Bittersweet went out with five projects in 2024 and sold all five. That’s a hit rate most agents can’t beat, as they’re taking educated guesses and entirely reliant on random stuff that comes in.”

So, some agents are collaborating and matchmaking in the book packaging ecosystem to assemble projects with high sales potential. And here we come to some of my questions about this case: Was Freeman aware that the three-year revision process in which she engaged with Kim was not representative of a typical author-agent dynamic? That the materials she prepared for Kim can be part of the book packaging process? Did she and Kim ever discuss book packaging? Did Kim ask for those materials with book packaging potential in mind?

To be clear, agents aren’t sifting through their submissions piles, unbeknownst to writers, looking for ideas to package. Ideas are more likely to originate from publisher discussions or from studying the marketplace. And agents actively involved in packaging create hard divisions between author work on packaged projects versus traditional deals where the author owns all rights. Kole tells me, “Book packaging and IP work isn’t for everyone. A writer who submits their portfolio to a book packager must be absolutely clear on the arrangement. They must understand that someone else owns the rights and originated the concept, that they are creating work product on a for-hire basis (a legal designation), and that their manuscript is subject to more rigorous feedback and sometimes outright revision. Even though all of this is codified in a collaboration agreement with our writers, we at Bittersweet still explain what we’re doing, why, and ask for permission (especially when it comes to hands-on revision) at every turn. Everyone’s role must be very clearly defined or the process doesn’t work.”

Still, could an agent take your idea and turn it into a packaging deal, using other talent? As with all aspects of the writing and publishing industry, there are good actors, bad actors, and everything in between. Kole doesn’t think this is a big risk, and neither do I, but this particular case does raise concerning questions. Kole said the conflict of interest for agents who also work as book packagers may be similar to when agents charge clients for editing. “I left agenting because I found my passion for editing and couldn’t figure out how to morally and ethically offer freelance editorial services on the side while actively screening submissions,” Kole says. “Writers are trusting agents and editors with their ideas and creative output. To abuse that trust—or to go behind a creator’s back in any way—undermines the very spirit of publishing.”

Bottom line: Milan said, “This lawsuit is almost certainly costing both sides deep into the six figures, if not more. One of the reasons I try to make posts like this is because nobody wins in lawsuits like this.” While Freeman’s copyright claim depends on just how similar her work is, word for word, to the published series, what I’ll be watching is how the court rules on claims related to the author-agent relationship. But will the case even get that far? The court has been encouraging the parties to consider a settlement, which seems wise.