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.




Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    cpt kangarooski, Mar 7th, 2013 @ 3:48pm

    Maybe they're arguing that the parts which were recycled from fanfic are not copyrightable by virtue of 17 USC 103(a)?

     

    reply to this | link to this | view in thread ]

  2.  
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    Vidiot (profile), Mar 7th, 2013 @ 4:08pm

    "On information and belief..."

    Belief won't trump information.

     

    reply to this | link to this | view in thread ]

  3.  
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    Anonymous Coward, Mar 7th, 2013 @ 4:15pm

    The one book you can't do a porn parody of

    It's actually kind of funny that you probably won't be able to get away with doing a porn parody of fifty shades of grey because it's already porn.

     

    reply to this | link to this | view in thread ]

  4.  
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    Josef Anvil (profile), Mar 7th, 2013 @ 5:07pm

    One for the CV

    It sounds like Prenda Law just found their new lead counsel.

     

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  5.  
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    PT (profile), Mar 7th, 2013 @ 5:12pm

    Re: The one book you can't do a porn parody of

    Indeed. And the notion that "Fifty Shades" is in any way derivative of stories about a woman who stubbornly refuses to have sex until she's legally wed beggars belief. The only thing "Fifty Shades" has in common with "Twilight" is a naive heroine.

     

    reply to this | link to this | view in thread ]

  6.  
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    Kode (profile), Mar 8th, 2013 @ 12:59am

    Re: Re: The one book you can't do a porn parody of

    You have no idea how angry this comment has made me, it's the vampire that refuses to give it up before they are married. I'm not angry you got it wrong, I'm angry I know that, lol.

     

    reply to this | link to this | view in thread ]

  7.  
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    Beech, Mar 8th, 2013 @ 1:22am

    Re: The one book you can't do a porn parody of

    So now you can't do a porn parody of a porn parody? Maybe it would be some kind of meta-porn.

    What would be really funny is if they did a PG parody of 50 shades. Have the hammy porn acting, get the actors into really hot and steamy situations...only to have them remember they have somewhere else to be and walk away. The audience would be waiting for nudity, and it would never come (pun intended i guess?).

     

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  8.  
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    Ninja (profile), Mar 8th, 2013 @ 2:39am

    We need a book. 50 shades of copyright. But instead of a sadomasochist novel it'll be a nonsensical comedy =D

     

    reply to this | link to this | view in thread ]

  9.  
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    Dr Duck, Mar 8th, 2013 @ 4:37am

    Re:

    >> Belief won't trump information.

    Actually, it does for a large part of the world's population.

     

    reply to this | link to this | view in thread ]

  10.  
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    Anonymous Coward, Mar 8th, 2013 @ 4:47am

    Re: Re:

    I need a "Sad, but True" button to vote up on this one.

     

    reply to this | link to this | view in thread ]

  11.  
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    Jeff (profile), Mar 8th, 2013 @ 7:21am

    Re:

    copyright by its nature is masochistic...

     

    reply to this | link to this | view in thread ]

  12.  
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    Anonymous Coward, Mar 9th, 2013 @ 10:15am

    Hmmm...could this all be contrived to boost sales of the books AND the porn?

     

    reply to this | link to this | view in thread ]


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