In the midst of its recent film release, 50 Shades of Grey is raising eyebrows for a new reason: possible copyright infringement.  News outlets have begun to question whether the author of the best-selling Twilight series, Stephenie Meyer, ultimately holds the copyright to 50 Shades of Grey, written by E.L. James.  The issue turns on what constitutes a derivative work.

The novel 50 Shades of Grey originated as Twilight fan-fiction under the title “Master of the Universe.”  E.L. James, a pseudonym for Erika Mitchell, borrowed the characters of Edward and Bella from Twilight, set them in a city as humans, and created new escapades to chronicle.  “Master of the Universe” garnered an enormous following, which led Vintage Books, a subsidiary of Random House, to enter into a book deal with James.  100 million copies later, and with changes to the setting and characters’ names, 50 Shades of Grey is now one of the top 10 best-selling books of all time.

The problem is that 50 Shades of Grey is eerily similar to “Master of the Universe,” which was explicitly based on the Twilight characters.  One writer used plagiarism-checking software Turnitin to compare a passage of “Master of the Universe” with 50 Shades of Grey and found that the similarity index was 89%.  In fact, for much of the text it appears that the only differences were in the names of the characters.

Copyright protection

Section 101 of the Copyright Act dictates that a derivative work is based on “one or more preexisting works,” such as a motion picture version of a novel.  Meyer, the author of Twilight, has the original copyright of the series.  This means that, in general, Meyer owns the Twilight characters.  By extension, Meyer also holds the exclusive right – the “derivative right” – to prepare and authorize others to prepare derivative works based on her original novel under § 106(2) of the Copyright Act.  That is, Meyer controls the extent to which the Twilight characters may emerge in subsequent works.

“Master of the Universe” appears to fit under the definition of a derivative work, as its characters are drawn directly from the Twilight series.  When a derivative work is created without the permission of the copyright owner, “copyright protection will not extend to the work in which such material has been used unlawfully,” writes the United States Copyright Office, and “the unauthorized adaption may constitute copyright infringement.”  Applied to the present matter, when material from Meyer’s series Twilight is used without her permission to create a new work, the subsequent author (e.g. James) may not be able to obtain a copyright for the new work (e.g. “Master of the Universe” or, by extension, 50 Shades of Grey).

Potential litigation

There is “widespread disagreement about how far the derivative work right reaches,” as the Washington Post notes, so it is unclear whether a federal court would hold that James’s 50 Shades of Grey – a derivative work of James’s own “Master of the Universe” – qualifies as an unauthorized derivative work of Meyer’s Twilight.  While Meyer has not granted permission for James to create a derivative work from Twlight, she has not yet initiated any public litigation directed at the 50 Shades of Grey series.  Still, because Meyer’s copyright lasts for her lifetime plus 70 years, James and her heirs may face litigation down the road.

Fair Use

The Fair Use doctrine provides an affirmative defense to copyright infringement claims like the one that Meyer might allege.  This doctrine permits limited use of a copyrighted material without the permission from the copyright holder.  In determining whether a subsequent work is permissible under the Fair Use doctrine, Section 107 of the Copyright Act requires courts to consider four factors: “(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purpose; (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.”

Under this doctrine, parodies and critiques often defeat copyright infringement claims because they sufficiently “transform” the original work in such a way that it may serve a new purpose.  James would likely argue that 50 Shades of Grey transforms Twilight completely, with a whole new set of characters, settings, and plot lines.  Without knowing that “Master of the Universe” was created in between the two, this argument might seem convincing.  Through all of the forthcoming sequels and new onslaught of fan-fiction, the potential for litigation remains uncertain.