Part of the continuing Internet conversation about E.L. James'
Fifty Shades trilogy concerns its degree of similarity to its original fanfic version,
Master of the Universe. See, e.g.,
However, this should be only the starting point of any inquiry about the appropriateness and legality of
Fifty Shades' publication. What matters – legally and perhaps ethically -- is how similar
Fifty Shades is to the
Twilight saga that inspired it, and whether it has attributes that should protect it from any legal action, similar or no.
Stephenie Meyer's Twilight, of course, involves the overwhelming attraction between Edward Cullen, a young (in appearance), devastatingly handsome, rich vampire, and Bella Swan, a human teenage girl. While Edward and his (adoptive) family have forsworn consumption of human blood, it still tempts him, and this particular girl's blood is the most tempting of all. Over the course of the four books, the couple face various perils and crises, and their relationship reaches certain key milestones. James' original fanfic, Master of the Universe, retained the names of Edward, Bella and various other characters, and used many of the same plot points, but eschewed the supernatural entirely. It's difficult to say more without spoilers (which I'll keep to a minimum until the end of this piece), but Edward in particular -- while just as handsome as before, and possibly even richer -- acquired a compelling and psychologically plausible back story, and confronted Bella with a very different sort of danger. James also added a whole lot of sex, both "vanilla" and kinkier varieties.
The characters and plot of Master of the Universe were sufficiently different from Twilight that the retention of the original character names at times seemed forced or inappropriate. When Master of the Universe became Fifty Shades of Grey, the Twilight-derived names were mercifully abandoned.
And now, with Fifty Shades secretly stashed on innumerable Kindles, Nooks, and iPads, and more and more women sidling into Barnes & Nobles nationwide and asking whether they carry the print version, it seems likely that lawyers for Stephenie Meyer, her publisher, and/or James' publisher have been reviewing some basic principles of copyright law and how those principles are usually applied.
17 U.S. C. §§ 101 et seq. governs copyright in the United States. (I'm not going to clutter this account with citations to particular sections, or to cases applying them -- but please feel free to ask for such citations in the comments.) Basic oversimplified overview: the author of an artistic work owns the copyright from the moment of the work's creation, assuming it's in fact an original work and the author hasn't contracted away his/her copyright. The owner of the copyright has exclusive control of the work (unless and until s/he contracts away certain rights). Copyright doesn't cover ideas, such as "the idea of hunting a formidable whale at the lead of an eccentric captain" (an example used in one federal case), or, closer to home, a rich handsome fellow with a scary secret falling in love with an inexperienced young woman. Rather, it protects the particular expression of an idea. The dividing line between an idea and the expression of an idea can be elusive.
The copyright owner has the exclusive right to prepare or authorize preparation of "derivative works" (those based on or adapted from pre-existing works). If anyone puts out an unauthorized derivative work, or otherwise infringes a copyright, the copyright owner can get a court to enjoin (prohibit) the offending work's publication, distribution, etc., and to order impoundment (seizure) of all copies and any plates, etc. used to produce them. The statute hasn't been revised to reflect POD or ebook publishing, but presumably, any impoundment order nowadays would include some appropriate measures to prevent the use of digital files.
The copyright owner can also sue for damages. S/he has the choice of asking for the infringer's entire profit from the derivative work, plus any damages s/he has suffered from the work's publication, or of receiving preset amounts set forth in the statute (the exact amount to depend on various factors as weighed by the trial court).
Case law (court decisions, in this case federal court decisions and particularly those of the Circuit Courts of Appeal and the U.S. Supreme Court) adds some wrinkles.
To prove copyright infringement, you have to start by proving that the copyright work was -- copied. You do that by proving (1) access and (2) "substantial similarity" between the original work and the work alleged to violate the original's copyright. The defendant (the one being sued) can still get out from under by proving that s/he created the work independently, without any reliance on the copyrighted work. (This makes copyrights different from trademarks: if someone has a trademark, you can't use the same brand name or logo or whatever, even if you thought of it in a public place, shouted "Eureka!" at the top of your lungs, and described it on the spot in excited detail.) Given the history of Fifty Shades, there's no question that Ms. James had access to the Twilight saga, and no claim that she dreamed it up independently. There is, however, room for debate about its "substantial similarity" to Twilight. This question gets tangled up with some related issues: the "fair use" exception and the idea of a "transformative" work.
There are various tests for "substantial similarity." One is "literal similarity," the verbatim copying or paraphrasing of the original work. The other kind of similarity is "nonliteral" similarity, most important if there is "comprehensive nonliteral similarity," where "the fundamental essence or structure of one work is duplicated in another." Some courts default to relying on that mythic figure, the "reasonable observer," and ask whether that admirable arbiter would find the works, as a whole, substantially similar.
There's very little verbatim copying of Twilight in Fifty Shades (with the exception of the overused adjective "mercurial" and countless descriptions of Edward's and Christian's hair). Nor did I notice Fifty Shades paraphrasing a great deal of Twilight's text. There are, however, many similarities between Fifty Shades and the Twilight saga. While defining a plot point or character trait is an intrinsically fuzzy and subjective matter, I counted possibly thirty or more parallels of plot or character. Some are central, some unimportant, and some important in Twilight and unimportant in Fifty Shades (e.g. the couple's appreciation of how the other smells). The POV of the two works is similar: Bella narrates the Twilight series, except for one sizable chunk of Breaking Dawn, and Ana's is almost the only viewpoint in Fifty Shades. (There is, however, a difference in tense: Bella's tale is told in past, Ana's in present.) While one cannot copyright a single idea, the doctrine of "comprehensive nonliteral similarity" suggests that at some point, a series of ideas becomes copyrightable material. It would take time I'm not willing to spend (since nobody's publisher is paying me) to research where and how consistently previous cases have drawn that line.
A finding of substantial similarity would not end the legal inquiry. The "fair use" of a copyrighted work isn't an infringement. Whether a use is "fair use" depends on a few factors, similarity being only one of them:
"(1) the purpose and character of the use, including whether such use is of a
commercial nature or is for nonprofit educational purposes;
"(2) the nature of the copyrighted work;
"(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
"(4) the effect of the use upon the potential market for or value of the copyrighted work."
Fifty Shades is a massively commercial use of a work whose nature is equally commercial. No basis for finding fair use there. The language of subparagraph (3), with its reference to a "portion" used, seems to concern verbatim copying -- so Fifty Shades doesn't take a hit there. What of subparagraph (4)?
Twilight was a cultural phenomenon. Fifty Shades may turn out to be another: sales have been stratospheric, and the series has generated a great deal of discussion, head-scratching, hand-wringing, etc. As someone who's read and enjoyed both, I don't believe that the success of Fifty Shades is in any way harmful to Twilight's future commercial prospects. I suspect the truth is just the opposite: that many readers of each series will seek out the other. Twilight, while classified as YA romance, has appealed to a great many mature women. These readers, hearing of a series with roots in Twilight but featuring adult characters and plenty of steamy scenes, may well be intrigued. More to the point, readers who appreciate Fifty Shades at least as much for its compelling characters and romantic world view as for its kinky sex scenes -- and I'd bet there are many such readers -- may well decide that Twilight is worth a look-see. Neither scenario deprives Stephenie Meyer or her publishers of any revenue, and the latter would provide some.
There is one aspect of the notion of "fair use" that comes from case law, rather than from the copyright statute: the notion of a "transformative" use. As one case put it, a "transformative" use "adds something new, with a further purpose or different character, altering the first with new . . . meaning, or message. . . . [T]he goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine's guarantee of breathing space." An oft-cited commentator put it this way: "[if] the secondary use adds value to the original -- if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society."
There is at least one group, the Organization for Transformative Works, pushing for the recognition of fanfiction in general as meeting this definition and thus falling within the "fair use" exception. Without taking a position on that broad question, I submit that the Fifty Shades trilogy is in fact a "transformative" use of its Twilight source material.
WARNING: SPOILERS (though rather vague and general ones) AHEAD.
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In arguing for Fifty Shades as a protected transformative work, I am not talking about its addition of heaping portions of sex. If Fifty Shades were simply Twilight plus sex and/or kink, the way Pride and Prejudice and Zombies is simply Pride and Prejudice plus the undead, then I would consider it exactly the sort of derivative work that an author should have the right to veto. It is the changes James has made to the essence of the story that lead me to defend her right to publish.
Instead of a supernatural romance set against a backdrop of vampire factions and werewolves, we have a thoroughly human love story. Instead of drawn-out suspense about whether Bella will embrace the advantages and disadvantages of bloodthirsty immortality, we have Christian's struggle to overcome his hideously traumatic past, move beyond his carefully maintained defenses, and allow himself to love and be loved. Both series are page-turners, and each relies for part of its suspense on external threats, but in Fifty Shades, the more deeply felt suspense concerns the nature of Christian's and Ana's relationship, and Christian's struggle with his inner demons. One sympathizes with and roots for Edward and Bella; but the reader's feeling for Christian is far closer to Aristotle's "pity and fear." For Aristotle, it was tragic drama that evoked these emotions, and Christian's tragic past is always lurking, threatening to destroy his and Ana's happy ending.
Fifty Shades, despite some amateurish touches and occasional poor editing, is a worthwhile addition to our collective store of stories. Its legal status is unclear. All in all, I hope that Stephenie Meyer, or whoever else has the power to decide whether to drag Ms. James into court, decides to refrain.
