Makers of Fifty Shades Porn Parody Countersue Universal, Claim the Book is Public Domain Because Fanfiction

So you may have heard that there’s a porn parody of Universal’s putative NC-17 rated Fifty Shades of Grey movie, even though Universal hasn’t even cast it yet. And some of those among you who were not aware are now surely nodding and saying “Yes, this was inevitable.” Well, it was also inevitable that Universal would sue the Fifty Shades porn parody for copyright and trademark infringement, which they are doing.

But what wasn’t inevitable was that Smash Pictures, the makers of Fifty Shades of Grey: A XXX Adaptation, would come up with an even moderately clever counter suit.

According to The Hollywood Reporter, Smash Pictures’ argument is that Universal is not the sole rights holder of Fifty Shades, because the story and its details belong to the public domain, and have ever since it was originally published as fan fiction (for Twilight, if you’ve remained uninformed on that particular detail) on various public websites like FanFiction.net. From their brief:

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 (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 website of Ericka (sic) Leonard. On information and belief, much or all of this material was placed in the public domain.

89% is an oddly specific number, but that’s the argument Smash Pictures has laid out to defend its use of “exact dialogue, characters, events, story and style from the Fifty Shades trilogy,” according to Universal’s original suit. Wether this argument actually holds any water is another story entirely. Large media corporations are only just starting to investigate the legality of obtaining rights to works once created spontaneously on sites based on user-submitted-content like FanFiction.net and Reddit (whose entire sub-forum dedicated to hypothesizing how long a modern armed forces battalion would last if spontaneously transported to ancient Rome recently spawned a movie deal). However, that doesn’t mean that they’re dumb.

Among other counter arguments, Universal says that Smash Pictures can’t claim that Fifty Shades is “derived” from other authors (specifically Stephanie Meyer) while they also claim that it’s derived from Masters of the Universe, a work created by Mitchell. And while I’m not so sure that’s a particularly firm position, it does seem to be true that there’s no guarantee anything on FanFiction.net is actually in the public domain, since there’s no specific mention of it in the site’s terms of service, according to the Hollywood Reporter. Hearings in the case will resume soon in California courts, and whether Smash Pictures winds up getting what they want, it’s still a pretty great plot twist.

I mean, so to speak.

(via The Hollywood Reporter.)