Will Fifty Shades do the law a favour?

With success come various burdens. It is often said that imitation is the sincerest form of flattery, but such flattery is often a colossal problem for successful creative artists. This has been the case in recent years for the author of Fifty Shades of Grey, E.L. James.

She joins the ranks of many best-selling authors, such as J.K. Rowling and Dan Brown, who invest heavily in the enforcement of their rights to protect their works. These cases often address very contentious and novel points of law and, although they may be seen as publicity stunts, often clarify important principles of law that might not otherwise be considered by courts due to the common lack of resources of copyright holders to take such cases to court. The problems which E.L James has encountered are no exception.

One problem that blights her regularly is the ripeness of the books for parody. Parody is a category of copyright usage that is treated differently in various jurisdictions. A recent change to UK law has created new exceptions from copyright infringement for parody, caricature and pastiche. They are now permitted when previously the permission of the rights-holder was required. This new law was scheduled to come into force in July 2014, but was delayed until October 2014. Unfortunately for some creative comedians, their production of a parody of the novels called “50 Shades! The Musical” was due to premiere in the UK at the Edinburgh Festival in August. It was therefore met with a legal challenge, as various other parodies of the books have in recent years.

However, the new exception will potentially cover any future parodies in the UK, subject to some safeguards. The main safeguard is the “fair dealing” requirement, which is notoriously controversial and difficult to define. Should this year’s Festival throw up another 50 Shades parody, as it surely will, a legal challenge by E.L James would be very much welcomed by legal commentators to test and clarify the new law and its components. However, the poor parody-makers might well be deserving of a break at last.

The Fifty Shades series is well-known to have derived from fan fiction written in honour of Stephanie Meyer’s Twilight series. The issues surrounding fan fiction, derivative works and copyright infringement are a labyrinth and have distinct nuances in different legal jurisdictions. In the UK, these issues were addressed in a case surrounding the Dan Brown book, The Da Vinci Code, which was challenged as infringing an earlier work by non-textual copying. The claimant listed various similarities between the works, but the case ultimately failed, as would most such cases given the difficult test involved.

However, this issue has been raised in a US case relating to a pornographic film made of the Fifty Shades novels. The producer of the film, Smash Pictures, claimed that E.L. James’ rights were unenforceable, as the Fifty Shades novels themselves lacked copyright due to (a) them being derived from the Twilight books; and (b) the intermediate fan fiction version being placed in the public domain. Although this case was settled out of court, it does raise some interesting issues that might be raised in the future in the USA, which has different laws from the UK relating to derivative works. Such a case could help clarify the position of the rights in fan fiction, which is a growing phenomenon in recent years. However, unless Stephanie Meyer decides to raise a case, it would seem quite unlikely such a case would get very far.

What is certain for E.L. James, especially with the upcoming release of the film adaptation of the books, is that there will be further enterprising people that will seek to capitalise on her success. This will lead to further legal action and, hopefully, the clarification of a few more problematic legal niggles.