The most scandalous part of 'Fifty Shades of Grey' isn't the sex and bondage

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News Media Commentary
Title: The most scandalous part of ‘Fifty Shades of Grey’ isn’t the sex and bondage
Commentator: Christina Mulligan
Date(s): February 11, 2015
Venue: The Washington Post online
External Links: The most scandalous part of ‘Fifty Shades of Grey’ isn’t the sex and bondage, Archived version
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The most scandalous part of ‘Fifty Shades of Grey’ isn’t the sex and bondage ("The work is a copyright mess. But it shouldn't be.") is a 2015 article by Christina Mulligan, an assistant professor of law at Brooklyn Law School.


The most scandalous part of “Fifty Shades of Grey” isn’t what Christian Grey does behind closed doors. It’s that the book might well be illegal art.

The movie’s dubious legal status stems from its origins: The popular novel by E.L. James began its life as unauthorized, online fan fiction based on Stephenie Meyer’s bestselling (and comparatively chaste) romance series “Twilight.”

Meyer’s copyright in “Twilight” grants her not only the exclusive right to make copies of her novel, but also the exclusive right to decide who can “prepare derivative works” of her novel. The “derivative work right” is the reason Summit Entertainment needed permission from Meyer to adapt the “Twilight” series into film. It also encompasses new works, such as sequels or alternate histories based on an original piece’s characters and setting.

This is where the legal status of “Fifty Shades of Grey” gets murky. The work was originally posted as unauthorized fan fiction online, under the title “Master of the Universe.” Its main characters, initially, were named Edward and Bella after the primary characters in “Twilight.” “Master of the Universe” explored what Edward and Bella’s relationship might look like if, instead of being a celibate vampire, Edward was a decidedly prurient human businessman. The popularity of “Master of the Universe” led to a seven-figure book deal.

But there is widespread disagreement about how far the derivative work right reaches. Many past cases indicate that “Fifty Shades” at least arguably constitutes an illegal infringement of Meyer’s “Twilight” series. In 2010, a federal appellate court held that an unauthorized sequel to J.D. Salinger’s “Catcher in the Rye” probably infringed on Salinger’s famous work — that book, “Sixty Years Later: Coming Through the Rye,” is now banned in the United States. Back in 1978, Twentieth Century Fox filed a lawsuit alleging that the “Battlestar Galactica” series infringed upon the “Star Wars” copyright. (The two works share similar plots, themes, settings and characters.)

Aside from saying that “Fifty Shades” is “too smutty” for her tastes, Meyer hasn’t taken any action against E.L. James. (The “Twilight” author has generally not objected to fan fiction based on her novels.) But Meyer never affirmatively granted James a license to write a novel derivative of “Twilight,” either. So “Fifty Shades” may be an infringing derivative work. Copyright protection lasts a long time, and Meyer’s heirs might have different opinions. Moreover, under current copyright law, unauthorized derivative works are not only infringing, but also are ineligible to receive a copyright themselves. This is absurd.

According to the Constitution, copyright protection exists to promote the “progress of science” — a term understood to mean “knowledge” in the late 1700s. Progress can be promoted by granting copyrights, which give authors incentives to create and an increased ability to earn an income from their projects. But the store of human knowledge also grows when the public is permitted to use the culture around them to develop ideas. “Fifty Shades of Grey” makes the sexual subtext and power dynamics of “Twilight” plain. Although it is easy to dismiss both novels as frivolous fiction, they both have become major parts of a society-wide conversation about what sex and relationships should look like.

Protecting new artists’ freedom to engage with culture preserves authors’ protection from piracy and slavish copying but allows new authors to stand on the shoulders of giants. Works such as “Fifty Shades of Grey,” “Coming Through the Rye” and “Methods of Rationality” aren’t works of piracy, but new works of art that communicate, build on and respond to some of the most salient parts of our culture. Their legal status should be clear and celebrated, rather than clouded in shades of grey.