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Copyright Fair Use: Fifty Shades of Grey

The origin of the book, movie, and general cultural phenomenon that is Fifty Shades of Grey is an interesting case study about copyright fair use in the world of online content creation. Let’s skip all the innuendo and get down to the good stuff – when is it OK to publish your own takeoff of an existing media property?

Fifty Shades didn’t start out as a physical book. It was originally posted online, in a different form, by its author, E.L. James, as Master of the Universe. Master is a series of fan fiction stories based on the Twilight books.

For the uninitiated, fan fiction, or fanfic, is “is fiction about characters or settings from an original work of fiction, created by fans of that work rather than by its creator.” If I write a story about, say, the characters from Star Wars, without getting permission from the owners of the property, that would be fan fiction.

(Full disclosure here: I haven’t read Fifty Shades or Master of the Universe or even Twilight, for that matter. I’ve fallen behind on my required reading.)

It all started when James took the characters and situations from Twilight and used them for the Master stories, which included more direct sexual content. The Master series was sufficiently popular that James changed the characters’ names, removed other direct references to Twilight, and published the stories under the new titles Fifty Shades of Grey, Fifty Shades Darker, and Fifty Shades Freed.

This was a notably successful publishing enterprise: over 100 million copies have been sold.

What about Stephenie Meyer, the poor, unfortunate writer of the Twilight series? Is she entitled to a piece of the action?

From a legal perspective, that question can be translated as “Is Fifty Shades of Grey a derivative work of Twilight for copyright purposes?”

It doesn’t look that way. Given that Fifty Shades doesn’t contain elements of or make reference to the original work of authorship, it shouldn’t be considered a derivative work. Of course, we know that Twilight was the inspiration, but inspiration alone doesn’t create a cause of action for copyright infringement.

Now, Master of the Universe is most certainly an unauthorized derivative work. Would Meyer (or whoever owns the Twilight copyright) have a claim for copyright infringement based upon James’ online publication of the stories? Yes – and the same would be true for any unauthorized fan fiction.

Would James have a fair use defense?

My regular readers will remember, of course, that you can’t just “claim” fair use – you have to assert fair use as a defense to a claim of copyright infringement. For lots more on the subject, check out my presentation What Is Fair Use?

Section 107 of the U.S. Copryight Act lists four factors to be considered when determining whether a copyright infringement is entitled to a fair use defense:

  1. The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
  2. The nature of the copyrighted work
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
  4. The effect of the use upon the potential market for, or value of, the copyrighted work

Let’s set aside factors 2-4 for today and focus on the first factor. The salient question may be whether James’ use of elements from the Twilight fictional universe was “transformative.”

From Dhillon v. Does 1-10, 2014 WL 722592 (N.D. Cal. Feb. 25, 2014):

Whether a use is transformative depends upon whether the new use “supersede[s] the objects of the original creation,” or instead, serves a new purpose…Even making an exact copy of a protected work may be transformative, provided “the copy serves a different function than the original work.”

The question before the court would be, “Did James serve a new purpose by taking the Twilight characters and placing them in a new, highly sexualized context?” Courts are split on the transformativeness issue in general, but if I had to guess, I’d say yes, James’ use was transformative. She didn’t just take the Twilight characters and write her own continuing stories about vampires and werewolves and such. Instead, one could argue, she used those characters to comment about sexuality and to investigate the underlying adult themes of the original stories.

In an ideal world, this would be an objective judgment. Courts should not be weighing on the artistry of James’ prose (or Meyer’s.) In the real world, it’s not always that simple.

So you can safely read or watch Fifty Shades of Grey without worrying that you’re partaking in a copyright infringement. What a relief, right?

However, creators of fan fiction should beware of pushing it too far unless they’re prepared to fight the original rights holders if and when they decide to get litigious.

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