Fifty Shades Of Copyright

Cozen O'Connor's David B Sunshine and J Trevor Cloak explain what fan fiction authors need to know about copyright protection

You would have to be living on the moon these past few years if you have not heard of (or perhaps secretly read) the Fifty Shades trilogy of novels written pseudonymously by EL James. However, you may or may not be aware that James originally wrote Fifty Shades as a work of "fan fiction" under the name Masters of the Universe ("Masters"), which was based on the well-known Twilight series. That fan fiction, by its very definition, is based on or derived from an original work raises numerous copyright issues that fan fiction authors should consider and understand. Some of these issues were recently brought to light in a lawsuit filed by Fifty Shades Limited ("FSL") and Universal City Studios ("Universal"), against Smash Pictures and others (collectively "Smash"), involving Smash's alleged unlawful production and distribution of pornographic adaptations of James' Fifty Shades of Grey novels.1 For example, does a fan fiction author retain any rights in the fan fiction work in view of the fact that it is derived from the original? Or do they risk his or her work being deemed a part of the public domain?

The Fifty Shades litigation

In the Fifty Shades lawsuit, plaintiffs alleged, among other things, that Smash "knowing[ly] and willful[ly] violat[ed] plaintiffs' copyrights in EL James' bestselling novels... by way of the production and distribution of adult films that take wholesale the dialogue, characters, and storyline from the Fifty Shades trilogy". Plaintiffs contended that Smash not only directly copied elements of the Fifty Shades novels in creating its pornographic adaptations but also did so in a manner that was neither a fair use nor parody of these works.2 The complaint asserted that Jim Powers, the writer and director of the XXX adaptation, admitted that he "'stayed faithful to the core material'" and "took the main elements of the first book... and utilised the most interesting character from the second" in creating the XXX adaptations.

Smash, in turn, filed an answer and counterclaim, denying its infringing activity and asserting, inter alia, that plaintiffs' copyrighted work is in the public domain and that plaintiffs' copyrights were invalid and unenforceable. Among other things, Smash asserted that "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 Stephanie 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[al] website of Erika Leonard... much or all of this material was placed in the public domain". During the authorship of this article, the parties reached an agreement to settle the matter "upon payment of a confidential sum by Smash Pictures to plaintiffs".3

What is at stake?

Even though the Fifty Shades case settled in the early stages of litigation, it garnered a lot of commentary across the blogosphere, likely due to the popularity of the Fifty Shades novels coupled with the perceived repercussions the litigation could have on fan fiction authors.4 Despite the settlement...