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"Fifty Shades" porn parody lost its lawsuit, but everyone wins

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Twilight begat Twilight fanfic, which begat Fifty Shades of Grey, which begat Fifty Shades porn, which begat the inevitable lawsuit. Now there's one fewer shade of copyright infringement in the endless wormhole of knockoffs. 

The latest endeavor was a porn parody attempting to cash in on the franchise. Universal Studios sued Smash, the producers of Fifty Shades of Grey: A XXX Adaptation, back in November. But recently Smash filed a countersuit that gave everyone from copyright critics to fangirls a collective whiplash: Fifty Shades of Grey, they argued, was "public domain" because it began its life as a work of Twilight fanfiction. 

Porn producer Smash finalized a settlement Friday with Universal. Smash will pay Universal an undisclosed amount and agree to halt production and promotion of this and any other Fifty Shades–based film.

Had the settlement not happened, fanfic authors and copyright activists could have been treated to one of the weirdest copyright cases on the books. Under U.S. copyright law, Fifty Shades could be "public domain" only if its author A) released her copyright into the wild, or B) died 70 years ago with no subsequent copyright claim in place. Smash's argument really implied that author E.L. James never had a copyright to begin with, because the work started out as Twilight fanfiction.

The countersuit brazenly cited the claim that the published version of Fifty Shades of Grey was "89%" identical to its fanfiction counterpart, which was originally titled Master of the Universe. This is a statistic taken from Dear Author's well-meaning but misguided 2012 examination of the two works, in which they did a simple find-and-replace on character names and a Turnitin analysis of the text to arrive at that number for overall similarities. 

But this analysis is only a logical proof of copyright infringement if E.L. James' original work of fanfiction was so similar to Twilight as to supersede her own copyright claim.  By any reasonable expectation of "similarity," the answer is a resounding no. In Fifty Shades of Grey, the hero is a generic billionaire, the heroine a passive virgin turned sex goddess. No one sparkles, tells the future, howls at the moon, lives forever, or has a thirst for blood.

What they do have is tons and tons of sex. So much that it's hard to see what a porn adaptation could be bringing to the playing field that we wouldn't get from an actual movie—apart from the obvious, that is. Extra bodily fluids might have made A XXX Adaptation messier, but it definitely wouldn't have made it transformative, which is the test needed to pass muster in court under the Fair Use clause of U.S. copyright law. 

Ironically, Smash might have been hoisted on their own petard. Had they chosen to make an actual parody of Fifty Shades, complete with name changes, silly plot spoofs, and a better title (think Lord of the G-Strings), they would have had a decent shot at basing their argument around the fact that A XXX Adaptation was fair use. Generally, the more a parody deviates from the original, the more transformative it is.

But Smash producer Stuart Wall deliberately went the opposite direction, telling LA Weekly that they were "choosing to go with a XXX adaption which will stay very true to the book and its S&M-themed romance," and adding that they were "writing the script to be as close to the series as [they] can get."

Ambitious? Yes. Parody? Most likely not. 

As for the fear many fan authors expressed last week that the lawsuit could have negative repercussions for fanfiction, that's been settled along with the counterclaim. Most legal experts considered Smash's argument to have no legal basis. And James's agent, Valerie Hoskins, told the Daily Dot in September that, porn industry aside, James had no intention of targeting fans. 

"We have not, nor will we, send any cease-and-desist letters to creators of fanwork," she stated.

As fuckyeahcopyright, a Tumblr dedicated to breaking down copyright law issues for fandom and other parts of the Internet, explained last week:

Even if it’s based on something someone else wrote, you hold a copyright in your original, specific words. Online and available does not equal Public Domain.

If you understand this, you are ahead of many people and corporations who are exploiting this misdefinition for their own gain.

Ahead of copyright law, yes, but behind on the good porn.

At least until another, actual porn parody comes along.

Photo via callad31735/deviantART