Fifty Shades Too Grey? written by Jonathan Feder

With millions in book sales and a movie in the works it is a question that is all too obvious to ignore—does Fifty Shades of Grey infringe on the copyright of Stephenie Meyer’s Twilight series from which it was adapted? (Find the text of Ewan Morrison's article in which he explores the same question here) Federal law, specifically 17 U.S.C.A. § 106, gives the owner of a copyright the exclusive right to prepare or authorize “derivative works based upon the copyrighted work.” But the fair use doctrine found in § 107 generally allows copying of the theme or ideas of copyrighted work though not its particular expression. Protected expression typically includes particular plot elements and characters as well as the “total concept and feel” of the work. Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir. 1970). In short, the ordinary person should not recognize the work “as having been taken from the copyrighted source.” Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478, 485 (9th Cir. 1961).

Has E.L. James in her book Fifty Shades of Grey crossed the line of infringement? Unfortunately there is no bright line test. In general terms, the idea of a young innocent girl falling for the perfect male but with one fatal flaw, be it blood-sucking or an erotic need to control, is not copyrightable. See Doody v. Penguin Group (USA) Inc., 673 F. Supp. 2d 1144, 1156 (D. Haw. 2009). Neither could the general setting of Seattle, Washington or the meet, date, break up, make up, marry, have kids sequence. But even if no single similarity would be subject to infringement, courts have held the arrangement or “combination of many different elements” as well as the order in which an author strings together concrete elements and the relationships between characters may command protection. Roth 429 F.2d at 1110.

Since Ms. James wrote the Fifty Shades trilogy as fan fiction for Twilight it is fair to conclude that she substantially copied the idea. The question therefore, is a factual one; did E.L. James in writing her work of fan fiction copy so much of the “total concept and feel” from the original work that a reasonable person would see that similarity? Id.

I invite you to be the one man jury. Go with your gut, consider Ms. James rendering of ideas, “the total sequence of events and the relationships between the major characters”, and you decide whether her work does in fact infringe on Twilight. Berkic v. Crichton, 761 F.2d 1289, 1293 (9th Cir. 1985).

And then take a deep breath. Because your favorite author probably won’t get sued. No suit has been brought to date and if history is any guide, presumably no suit will be brought. Why not? Many authors were themselves writers of fan fiction when they were young, many are flattered by the fan participation, and some even encourage it while very few condemn it. The few that have fought back have only succeeded in alienating the very fans they sought to secure. See Aaron Schwabach, The Harry Potter Lexicon and the World of Fandom: Fan Fiction, Outsider Works, and Copyright, 70 U. Pitt. L. Rev. 387, 415 (2009).

It seems that for now fan fiction lies in that grey area of law, neither wholly accepted nor wholly enforced. How much grey is still okay? All we know to date is—at least fifty shades.