Intellectual copyright law is one of the trickiest things to enforce since it’s essentially trying to protect since it’s never clear where certain pieces come from. Asserting something is original requires history, in-depth analysis of the final product, and in some cases gauging the success of the respective parties.
An interesting example in the literary world is the story behind the creation of the modern erotica Fifty Shades of Grey. The coming release of the Grey movie allows this three-year-old debate to resurface, providing a good real world example of the intricacies in copyright infringement.
The legal story begins when James, as part of a warranty agreement, claims that the trilogy is one hundred percent original fiction. There’s a generally accepted assertion in the fan fiction community that Fifty Shades grew from a multi-part fan fiction series entitled Masters of the Universe (MOTU). That collection of stories was then based on the world of the equally popular Twilight books by Stephanie Meyer.
Original and Derivative
Because of the fluid nature of the properties concerned, there are ways for people and companies to co-exist in the intellectual property arena. But, this also breeds a lot of confusion regarding what companies and property owners can and can’t do in defending what they think is theirs. Let’s try to clear up some of the most circulated misunderstandings on intellectual property, and find its basis in law.
A copyright represents a creator’s dominion over the entire body of work. The only way for Meyer to have a case against James is if she can somehow prove that Shades is a derivative work of Twilight, which is defined in U.S. Code, Title 17, Chapter I, § 101, and subsequently protected by § 102, and § 103 of the same Chapter. The key to proving this is by showing that Shades and MOTU are similar, and that the elements the former took from the latter are the same ones the fan fiction took from Meyer’s work.
Transforming and Fair Use
The Shades books aren’t defenseless, though. Even if courts find similarities between Shades, MOTU, and by extension Twilight, James can still defend herself using the transformative aspects of fair use. The rights of what constitutes fair use is discussed in §106, §106A, and §107 of the aforementioned Chapter.
If James made enough necessary changes to the plot and characters of her books, she can evade the level of substantial similarities between their works required to prove infringement. Proving substantial similarities is an elusive activity at the best of times, and can cause lawyers to argue out even the most minute and inconsequential of details.
Literary analysts are split on whether the differences between the two works outweigh their similarities, but most agree that it will be a difficult legal battle, if it ever goes to court.
Fortunately, fans of both franchises are safe, because Meyer herself has said that the two are completely different stories regardless of the origin of the Grey trilogy. But, most people see this move as more of Meyer distancing her work from the reputation that the James books received in recent years, rather than the legal and literary merits of her copyright.
For a more in-depth analysis of the transformative aspects of fair use relating to this case, check out Karen A. Wyle’s analysis on looking-around.blogspot.com.