Emily the Strange tries to prove she's unoriginal

This is from a fascinating feature in the San Fransisco News:

Earlier this month, Cosmic Debris, the Berkeley-based company that owns Emily's trademark, filed what could be called a pre-emptive lawsuit against the creators of an Emily-like character featured in the Nate the Great children's book series from the '70s. The suit asks the court to bar the author and illustrator of the books, Marjorie Weinman Sharmat and Marc Simont, from taking action against Cosmic Debris or collecting monetary damages.

The trouble began late last year, when the blogosphere started buzzing that Emily bore an uncanny resemblance to Rosamond, a character from Nate the Great. Bloggers pointed specifically to one early, now-discontinued image of Emily from the early '90s in which she appears in her standard black dress with an entourage of black cats and the following text: "Emily didn't look tired or happy. She looked like she always looks. Strange." They compared it to an image of Rosamond with a similar dress and cats with the text: "Rosamond did not look hungry or sleepy. She looked like she always looks. Strange."

As the article points out, there is a fascinatingly meta point to make here about how Emily the Strange is as similar to other concepts of "goth" aesthetics as any other Hot Topic hawked brand that teenagers adopt to rebel against conformity, just like their peers. But, really Emily the Strange? this does sound more than a little fishy. In response to the blogosphere discovering the similarities between these two characters:

Emily's longtime illustrator, Rob Reger, posted an explanation on the Web saying that he learned about Rosamond years after taking over the creative reins of Emily. "We phased out the original skateboard design upon learning of the Rosamond character and worked with the creative team to further distinguish Emily and her universe," he wrote. "Regarding copyright law, there is legally nothing wrong with sharing or implementing a unique variation on a concept."

Sure, and there are fifty variations of Peter Pan, none of which feel the need to sue one another. But here comes the sticky wicket, while the preemptive lawsuit outlines how the goth girl character is done again and again and again...

The lawsuit reads like a primer on 20th-century goth girls, and submits as evidence pictures of Elvira, Vampira, Wednesday from The Addams Family, Lydia from Beetlejuice, and manga characters. "For many decades," the lawsuit states, "a common cultural motif that has appeared in many creative works involves a woman or girl with long dark hair, possibly bangs, and dark clothing who is associated with the macabre, occult, mysterious, or strange, and is sometimes accompanied by creatures such as bats or black cats."

... those are clearly distinguishable from one another based on a number of factors, not the least of which are the narrative universes they inhabit. While you can see through-lines, are they any less familiar than the hundreds of adventure heroes in vague Medieval worlds fighting dragons and rescuing princesses? Is there not an argument to be made that by trying to legally say that these female characters are indistinguishable from one another, all princesses are the same? I'm sure Fiona, Ariel, Princess Peach and Princess Superstar would take that assumption to the court of law and the court of public opinion.

Let's look at the argument posited by Emily the Strange for a moment here "Regarding copyright law, there is legally nothing wrong with sharing or implementing a unique variation on a concept." Ok, true, people do this all the time in every creative field you can name, fashion designs ape historical looks and deconstruct vintage store finds every season. If I hear about another remake of a film I think my eyes may get stuck rolled into the back of my head, and the X-men have been killed and resurrected so many times that I've lost count.

The Emily the Strange group has noted the similarity between the two concepts before:

"...Even Emily's Wikipedia entry notes the similarity, citing the blog entries as the source. Emily the Strange publicist Jill Beaverson said the company has never been contacted by the book's publisher or author about the issue. "We've done nothing wrong....Honestly, we were rather hurt by [the allegations]."

If the book's publisher doesn't care, why take it to court at all?

It's unclear if the likeness is actually a copyright infringement, says San Francisco attorney Lizbeth Hasse, who represents RDR Books, a Michigan-based publishing company currently being sued by J.K. Rowling in New York Federal District Court to block the release of the company's "Harry Potter Lexicon." The copyright holder would have to prove that Rosamond has a "substantial similarity" to the Emily of the last three years due to the statute of limitations. The fact that the girl with the cats and nearly identical text may meet the "substantial similarity" bar is a moot point since that Emily graphic was apparently discontinued years ago, she says.

"I'm not sure a waif with black hair is original enough to necessarily say it's an infringement of that earlier character," Hasse says. "That's not as similar as it may seem at first blush."

The picture at top is an early illustration that was never used for public consumption, and it's easy to look at that and say Shenanigans, but if the publisher isn't trying to sue, does it really matter? It can be argued that it is no more stolen than he concept of a small plastic pony, examples here, here and here, but unlike the Bratz Little Pony, it is far less aesthetically repulsive.

It will be interesting to see where the courts decide, Emily seems to have a narrative that is somewhat different from Rosamund, but are the images damning enough to alienate their "non-conformist" fanbase? From the viewpoint of fan validation is the Internet buzz enough injury to justify the lawsuit, and is the lawsuit not an even more damning slap to the fanbase's gothy ideals? It's sound business to make sure a lawsuit will never come if the possibility is there, but at what price?