Producers Of '50 Shades' Porn Parody Argue That The Work Is In The Public Domain... But It's Not

from the that's-not-how-the-law-works dept

Back when Universal Studios sued the makers of a "porn parody" of the insanely popular book 50 Shades of Grey, we were among those who pointed out that the book itself was really originally a fan fiction work based on the Twilight books/movie series, and that it seemed a bit hypocritical to not allow other derivative works. I don't know if it was because of us calling out this fact, but the producers, Smash Pictures, are using that exact point in their defense... but then are bizarrely arguing that this makes the work 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 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 Erika Leonard. On information and belief, much or all of this material was placed in the public domain.

To which we can only say, "huh?!?" I could see an argument being made about transformative works and fair use, but there's no indication anywhere that the work is in the public domain. Just because the same author posted a very similar version online earlier has no bearing on the copyright in the work itself. It kind of makes you wonder about the lawyer that Smash Pictures has working on this case that they'd even make this argument.

Not surprisingly, Universal Studio's high priced lawyers hit back pretty quickly, calling the filing "slapped-together" and pointing out that the whole public domain argument makes no sense.

Moreover, their unsupported assertion that “as much as 89% of the allegedly copyrighted material is derived from previously published, public domain fan fiction based on Stephanie Myers’ Twilight novels” is both deliberately misleading and legally flawed. Defendants suggest that the Fifty Shades Trilogy is “derived from” works by authors other than Erika Mitchell. However, Defendants are in fact referring to an earlier version of the same story written by Ms. Mitchell, which they in their own improper deposition notice identified as “Master of the Universe.” ..... Defendants do not and cannot provide any legal authority for the proposition that an earlier version of Ms. Mitchell’s work is now in the “public domain.” They can hardly defend their infringement of Plaintiffs’ copyrights in the Fifty Shades Trilogy by claiming that it is substantially similar to Ms. Mitchell’s own earlier work.

Indeed. While I still think the lawsuit itself is silly, the public domain claim here is just wacky.

Filed Under: 50 shades of grey, copyright, derivative works, fan fiction, parody, porn, public domain, transformative, twilight
Companies: smash pictures, universal studios

Universal Studios Sues Over Porn Parody Of '50 Shades Of Grey'; Ignoring 50 Shade's Own History As Fan Fiction

from the fan-fiction-begets-fan-fiction dept

Over the past few years, there's been a lot of porn parody movies created. Porn studios have realized that it's an effective way to differentiate themselves from "everyday porn." While some have wondered about the legality of these things, very few have bothered to take the producers to court, recognizing that parody is generally considered protected under fair use. However, apparently Universal Studios has decided that enough is enough and has sued the maker of a porn parody of the book 50 Shades of Grey, Smash Pictures. 50 Shades, of course, is that insanely (seriously: insanely) popular erotic novel, and Universal is arguing that the flick hits a little too close to home, so to speak, and isn't a "parody" so much as it's just an adaptation of the book, which Universal holds the rights to. Specifically, the lawsuit, filed by Universal and "Fifty Shades Limited," uses the claims from the director that the movie is "very true" to the book to suggest it isn't a parody at all:

box for the First XXX Adaptation promotes the infringing work as "[b]ased upon" the Fifty Shades Trilogy and as "[putting] the kinky fantasies that you only imagined into vivid color." According to a Smash Pictures executive's interview with L.A. Weekly, the First XXX Adaptation is "very true to the book," with the script written "to be as close to the series as (director Jim PowersJ can get." Due to the popularity of the Fifty Shades Trilogy, Smash Pictures expects that the First XXX Adaptation "just might be our biggest film to date."

By lifting exact dialogue, characters, events, story, and style from the Fifty Shades Trilogy, Smash Pictures ensured that the First XXX Adaptation was, in fact, as close as possible to the original works. Beginning with the First XXX Adaptation's opening scene and continuing throughout the next two and a half hours of the film, Smash Pictures copies without reservation from the unique expressive elements of the Fifty Shades Trilogy, progressing through the events of Fifty Shades of Grey and into the second book, Fifty Shades Darker. The First XXX Adaptation is not a parody, and it does not comment on, criticize, or ridicule the originals. It is a rip-off, plain and simple.

Universal also seems pissed off that the studio is selling a "Fifty Shades of Pleasure: Play Kit & Movie" that has not just a DVD of the porn flick, but "various adult novelty items used in the Fifty Shades Trilogy."

Universal may very well have a case here. At the very least, it raises some questions about how one creates a "porn parody" of an already pornographic novel. And, that's especially true when the language in the novel is barely above the level of your typical porn script already. The complaint has over four pages of dialogue comparison between the original book and the porn flick and... well... it's not exactly fine literature.

Still, the thing that strikes me about this -- and which isn't mentioned in the filing at all -- is that Fifty Shades, itself, actually came out of a "pornographic adaptation" of the Twilight series. In fact, while those behind Fifty Shades have sought to erase this history, it does seem like a relevant point. Fifty Shades was pornographic Twilight "fan fiction," which was later rewritten to scrub it of references to Twilight. While Fifty Shades' author, EL James, her agent and publisher all like to claim that the Twilight fan fic James wrote and the eventual Fifty Shades book are really different works, someone compared the two using a plagiarism checker and found them to be 89% similar.

And, of course, out of that form of "infringement," something else came about. Seems pretty hypocritical (but, really, all too typical) to try to stop other adaptations/extensions of the work now that you're profiting off of the same sort of thing.

Filed Under: adaptation, fan fiction, fifty shades of grey, parody, porn parodies
Companies: fifty shades limited, smash pictures, universal studios