Passive Guy posted a short item about the Fifty Shades books selling more than ten million copies earlier this morning. Brendan commented that he couldn’t understand why Stephenie Meyer hasn’t sued Fifty Shades author E.L James.
PG hasn’t researched this in depth, but Dear Author has:
Fifty Shades of Grey is a self published work by a British author using the pseudonym, E. L. James. It was originally published along with the two sequels, Fifty Shades of Darker and Fifty Shades of Freed, in its entirety, as Master of the Universe on ff.net, a site that hosts what is known as fan fiction. Master of the Universe reimagined the Bella and Edward love affair set in contemporary Seattle, Washington with Bella as the young college graduate virgin and Edward as the masterful billionaire with secret sexual predilections. This collection of submissions has since been deleted.
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[By March, 2012] [t]he book [had] become a sensation in New York City where Upper East Side women are reading it in droves. While some are comparing this to the Story of O, romance readers know this series falls within the erotic romance category, a category of books where the sexual relationship is the vehicle for the relationship arc.
On March 10, 2011, Vintage announced it had won a bidding war for the books, paying seven figures for the three Fifty books (and possibly others) for North American rights. Vintage, a division of Knopf|Random House, released new ebook editions on March 12, 2011, and a 750,000 print run of trade paperbacks will follow.
Link to the rest at Dear Author
Dear Author explored similarities between Master of the Universe and Fifty Shades:
Vintage, a division of Random House, has come forward and asserted that the 50 Shades series is wholly original fiction and that the author has warranted it is original fiction, deviating substantially from the original fan fiction known as Master of the Universe.
As numerous reports have outlined, 50 SHADES OF GREY grew out of a multi-part series of fan fiction called MASTERS OF THE UNIVERSE, based on Stephenie Meyer’s TWILIGHT novels, that James (a pseudonym for London-based television executive Erika Leonard) published online between 2009 and 2011 in various venues, including fanfiction.net and her own website. When she contracted with Writers Coffee Shop in early 2011 to publish the works, lightly rewritten to take out any references to Twilight characters and situations, James took the fan fiction versions offline.
Vintage issued a statement to the AP Saturday defending 50 SHADES as an original work, and said to us that James had warranted the books were, indeed original. Messitte added she was “aware of the narrative that [50 SHADES] started as differently titled piece of fiction, but that they were and are two distinctly separate pieces of work.” A request for comment from Meyer’s agent, Jodi Reamer at Writers House, was not responded to at press time.
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It is well known amongst the fan fiction and romance reading community that 50 Shades series was originally released as Master of the Universe. The names are changed from the original alternate universe fan fiction (AU) and a few details such as eye color and hair color, but the text of 50 Shades is largely that which was in the original fan fiction, Master of the Universe.
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We ran 50 Shades and the Master of the Universe fan fiction through three comparison engines.
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Vintage says of MOTU and 50 Shades, “they were and are two distinctly separate pieces of work.” Turnitin says they are 89% the same.
With the success of Alternate Universe fan fiction and the successful leveraging of that fandom into seven figure economic rewards, the influx of fan fiction into professional publishing is likely to begin at greater levels than previous. Some publishers give public guides as to how to disguise one’s fan fiction.
Link to the rest at Dear Author
A derivative work is defined under United States copyright law (17 USC 101) as follows:
A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.
Copyright owners have the exclusive right to produce derivative works based on their original, copyrighted works. A derivative work can be independently copyrighted.
In response to Brendan’s comment, PG speculated that the Fifty Shades author and her publisher may have come to an agreement with Meyer, but the quote from Random House above would seem to indicate they have not.
The “James had warranted the books were, indeed original” statement by Random House references a part of a standard warranty an author gives a publisher in many publishing contracts. Theoretically, if the warranty is untrue and the publisher is sued, the author will pay the publisher’s damages.
However, Ms. Meyer is not bound by the publishing contract between James and Random House, so she can sue both if she believes they have violated any of her copyrights.
An analysis even more detailed than those performed by Dear Author would be necessary to determine the amount of copying Ms. James did of Ms. Meyer’s books. Copyright infringement short of simply making a copy of another work is not a simple thing to prove.
However, in PG’s inescapably humble opinion, a court considering the infringement question would pay close attention to the fact that Master of the Universe was an unabashed fanfic work clearly based on Meyer’s work. If a judge starts down that path, the chances of the judge finding Fifty Shades is a derivative work increase.
Given the very public origin of Master of the Universe, if a judge found Fifty Shades to be a derivative work based on Meyers’ books, the possibilities of a judge also finding the copyright infringement to be willful are also greater. This raises the financial stakes.
PG mentions a judge-tried case here because most cases of this nature are tried to a judge. A jury trial would also be a possibility, but the judge would still make legal determinations that would have a substantial impact on the trial’s outcome.