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Fifty Shades of Fair Use

· February 10, 2015

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Fifty Shades of Grey, which is being released this Friday just in time for Valentine’s Day, is sure to be one of the top grossing films of the year. Depending on your point of view, fair use is to blame—or thank—for the existence of the Fifty Shades franchise.

The movie is based on the three erotic Fifty Shades novels, which have dominated (pun intended) book sales for the past three years. Over 100 million copies of the novels have been sold, the first novel of the series has been on the New York Times bestseller list for 140 weeks, and the novels have been translated into 51 languages. And to make sure that no dollar is left behind, Target just began distributing a line of Fifty Shades sex toys to coincide with the film’s release. Similarly, Vermont Teddy Bear is offering a Fifty Shades of Grey Teddy Bear, featuring smoldering eyes, a suit and satin tie, a mask, and mini handcuffs.

The British author of the series, E.L. James (a pseudonym for television executive Erika Mitchell), originally wrote the trilogy as fan fiction of Stephanie Meyer’s popular Twilight series, and posted it in installments on the fan fiction site FanFiction.net under the title Master of the Universe. Some of the readers complained that it was too racy for the site, which tries not to host adult content, so James moved it to a website she created, FiftyShades.com. At some point the popularity of the story must have convinced James of its potential commercial value, so she eliminated the potentially infringing references to Twilight characters and plotlines while retaining her original bondage/discipline, dominance/submission, and sadism/masochism themes. She divided this revised version into three novels that were published as e-books by an Australian virtual publisher.

Fan fiction is a quintessential fair use. It is highly transformative and does not harm the market for the original work. To the contrary, by allowing fans to engage and interact with the works they admire, fan fiction enhances fan loyalty and likely increases sales. For this reason, the vast majority of authors and media companies do not object to non-commercial fan fiction. (The little litigation involving fan fiction has arisen in circumstances when a commercial publisher distributed what started as fan fiction, e.g., the Harry Potter Lexicon.)

It is unclear whether fair dealing, the UK version of fair use, permits fan fiction to the same degree as fair use. The copyright laws of other European countries likewise do not contain exceptions sufficiently robust to provide certainty about the legality of fan fiction. For this reason, the world’s largest fan fiction websites are based in the United States. Thus, FanFiction.net, the website on which E.L. James first posted Master of the Universe, was established in California in 1998. Fan fiction websites, like search engines and social media platforms, are examples of how fair use has enabled the global leadership of U.S. Internet companies.

Fair use and the fan fiction culture it enables nurtured the development of Fifty Shades. As she uploaded chapter after chapter of Master of the Universe, James almost certainly would have received constructive comments from other fans of “Twific” (Twilight fan fiction) recommending stylistic changes and plot twists, and urging her to continue writing. The fan fiction environment provided James with a platform for road-testing her work, and developing a following, without incurring infringement liability.

The creative cycle continues. Thousands of “fanfics” inspired by Fifty Shades are now available on FanFiction.net and other fan fiction websites. Perhaps some day one of them will evolve into a bestselling novel or a major motion picture.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.