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.