Slog

News & Arts

Line Out

Music & the City
at Night

« A Bad Month for the (Alleged) Pimps… | Overheard in the Office »

Monday, March 4, 2013

Books Is E.L. James's Fifty Shades Trilogy in the Public Domain?

Posted by Paul Constant on Mon, Mar 4, 2013 at 2:15 PM

So Universal Studios, which is working on the film adaptation of Fifty Shades of Grey, sued porn producer Smash Pictures, the maker of Fifty Shades of Grey: A XXX Adaptation for stepping on their copyright. Now Smash Pictures has filed a very interesting countersuit:

According to the adult film company, Universal has asserted invalid and unenforceable copyrights on the books of EL James, whose real name is Erika Leonard Mitchell. What's more, the defendant says that the property that Universal paid $5 million to turn into a film adaptation is in the public domain.

"On information and belief, as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephenie Myer's (sic) Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including fanfiction.net and the person website of Ericka Leonard. On information and belief, much or all of this material was placed in the public domain."

It's very likely this suit will go nowhere, but if it did go to court, it could have very real consequences for fan fiction, which many publishers and authors outright loathe.

FacebookShare

Comments (18) RSS

Oldest First Unregistered On Registered On Add a comment

This is a nonsense claim. Wouldn't 89% of the copyright status then go to Stephanie Meyer, as the fan fiction of her characters is still her characters, while the remaining 11% would go to the original authors of whomever created that other content?

Posted by Joe Szilagyi

on March 4, 2013 at 2:30 PM

Maybe but those aren't the people suing the porn co. And it wouldn't go to Steph Myers, it would go to the author of Fifty Shades. Who probably could not care less it's a porno.

Posted by gnot on March 4, 2013 at 2:37 PM

If it goes to court, which it won't, it will have no real consequences for fan fiction whatsoever, because fanfic writers and distributors have never believed that copyright laws apply to them*, and 99.99999999% of the time the publishers either don't care or tacitly encourage it, since it's costing them no money† and often encourages sales of the original property.

(*Seriously, try to have a conversation with one in which the word "transformative" is not intoned over and over again as if it has magic powers: it's like the people who think they've discovered the hidden loophole in the constitution that makes the federal income tax magically disappear, only somehow even more annoying.)

(†Remember: while the penalties for straightup copying have gotten ever-more-draconian and in some cases have crossed the line from civil to criminal court, creating an unlicensed derivative work, while clearly a copyright violation on paper, requires that the complainant show damages.)

Posted by Doctor Memory

on March 4, 2013 at 2:38 PM

After reading two of the three Fifty Shades books, I concluded that a movie adaptation would work best as a comedy...

Posted by orino

on March 4, 2013 at 2:52 PM

"Fifty Shades of Grey" isn't in the public domain. Copyright law states that published works of an author has an implied copyright if he or she published a work, unless it is very clearly stated otherwise that the work is in the public doman. This is just a very bad legal brief that would probably get the attorney of the brief a tongue lashing by the judge for wasting the court's time.

No matter how the work started out, whether fan fiction, etc. the author has some copyright protection. Copyright of written material is has more legal ground to stand on for authors of written work than they are of musical works. Universal is paying for the film rights for the work/book, and in many ways they are suing to protect their film rights. It doesn't matter if parts were started on fan fiction net or have been influence by the "Twilight" book series. "Fifty Shades of Grey" was organized and published as copyrighted work by EL James.

Posted by ferret

on March 4, 2013 at 2:53 PM

I claim prior art for the German High Command during WW II.

Posted by Will in Seattle

on March 4, 2013 at 2:53 PM

I'm not familiar with any of the websites involved, and don't much care to look, but I find it highly implausible that they had any disclaimers that material posted to them is automatically in the public domain. Indeed, the defendants here seem to be claiming that any writing posted by the author to be freely visible on a website (for a time, at least) is in the public domain. This would be an absolutely risible claim.

Posted by Warren Terra on March 4, 2013 at 3:06 PM

Simply posting a story on a website does not mean it is in the public domain.

Posted by fletc3her on March 4, 2013 at 3:32 PM

All this trouble because they couldn't be bothered to name it Fifteen Degrees of Ecru or some shit.

Posted by keshmeshi on March 4, 2013 at 5:30 PM

http://i289.photobucket.com/albums/ll224…

Posted by venomlash on March 4, 2013 at 6:02 PM

How about 50 Variants of Comic Sans?

Posted by Will in Seattle

on March 4, 2013 at 6:50 PM

movie studios just need to accept the fact that any successful "property" will have a porno parody made ... and should just move on

Posted by Gordon Werner on March 4, 2013 at 6:56 PM

I never read the books, but I hope the countersuit succeeds, only because I'd much rather see the porn version. I assume any honest reader of this series would confess to wanting that as well.

Really, wouldn't the porn version be far truer to this trashy pulp disguised as literature than Universal's NC-17 version?

Posted by Free Lunch on March 4, 2013 at 7:10 PM

isn't it customary to change the name a BIT, like "edward penishands"? that way this unpleasantness is avoided.

Posted by Max Solomon on March 4, 2013 at 8:26 PM

@5 I think that is exactly what they are saying happened. She wrote "Masters of the Universe" and expressly placed it in the public domain. While she holds copyright for Fifty Shades, the works are 89% similar, making the vast bulk of Fifty Shades basically a copy of a public domain work.

I can write my own version of Huck Finn, and can even copyright it, but I can't sue someone who does the same.

Though both of these are are her works, and the title clearly shows what work they are referring to...

Posted by giffy on March 4, 2013 at 9:20 PM

@7 and others: I would suspect that Smash's reasoning for the "public domain" claim is that since the work started out as unauthorized Twilight fiction (violating Meyers' copyright), there's no way James can legally copyright that original form...but published it on the Web anyway. And since FSoG is largely a rewrite of that same unprotectable and previously published work, that makes its copyright indefensible as well.

(I'm not saying that I agree with this, mind you...but I can see where it's coming from.)

Posted by DonServo on March 4, 2013 at 9:30 PM

Are they conflating "the internet" with "the public domain?" A work's infringing on copyright doesn't automagically convert the work into public domain, does it?

Posted by Orsh on March 5, 2013 at 1:46 AM

@17: Murky as copyright law can be, there's really no gray area between copyrighted material and public domain material, with the exceptions of parody and fair use. If you can't legally copyright a work (like an unauthorized fanfic), but publish it anyway (whether on the Internet or in print) , you've both placed it in the public domain and committed copyright infringement - two bummers for the price of one.

Posted by DonServo on March 5, 2013 at 5:33 PM