IP News: 50 Shades of Copyright Infringement

Hoichi the Earless – I doubt even magic ideograms will keep away the lawyers for the 50 Shades. (Get it, shades, like ghosts?  Gawd I’m funny.)

Last November, Universal Studios sued a porn company for its plans to make a 50 Shades adaptation without permission.  According to Universal, the film is a direct adaptation and not parody, a fact supported by quotes from the movie’s producers saying things like “The film will be very true to the books.”

The response to the claim has come out and is surprising and possibly very interesting.  The Hollywood Reporter has the details:

According to the adult film company, Universal has asserted invalid and unenforceable copyrights on the books by 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 (sic) Leonard. On information and belief, much or all of this material was placed in the public domain.” (link)

There are two ways to read this statement.

1. The legal argument that at some point E.L. James posted the work (or an early version of it) on a website with a public domain license.  For example, if you post something on wikipedia, you can’t later claim copyright on it because Wikipedia is in the public domain.
2. The colloquial argument that the text has been published in the open on the web, and is thus in a domain that is public.

From my quick read of this article, it appears as if the porn company is arguing that the fact the story was published on a free website before it was collected and edited into a novel means it is in the “public domain” and thus not copyrightable.  If my read of the facts are right, this argument is dead wrong.  “Made freely available” is distinctly different from “public domain.”  But it’s not surprising to see the argument made in this world where “freely available on the web” seems to mean  “available to use.”

Three outcomes:

1. If the Smash Pictures has a smart lawyer, then they wouldn’t make this claim unless there’s good proof to back it up.  What if an earlier license on the site where the story was published was a public domain license?  Boy would that be interesting.  On the other hand, it may be a ploy based on the fact that they have no other arguments to make.
2. The judge could decide the film is parody, in which case it would be protected.  The earlier coverage about “staying true to the book” and one-upping the MPAA-authorized version seems to work against this read.  On the other hand, most of the press seems to be calling it the “Fifty Shades Parody” case.
3. Universal wins and gains control of the film themselves.  They could shelve it until after the Hollywood version is made and released, then sell the XXX version as well.  Double the money!

The part of this whole thing I find most interesting is the drifting popular definition of legal terms.  Just as “fair use” has come to serve as a talisman that people believe gives them shelter for all kinds of extra-legal shenanigans, “public domain” seems quite misunderstood and likely to become moreso as time goes on.

PS – I found this issue because of this tweet from Jodi McAlister.  Thanks, Jodi!