The Legal Infrastructure of Business: When 'Mommy Porn' Gets Real

It was bound to happen at some point ? a XXX ?interpretation? of the wildly successful Fifty Shades of Grey book trilogy. Los Angeles-based adult entertainment company, Smash Pictures, recently released 'Fifty Shades of Grey: A XXX Adaptation' which was shot in HD and claims to ?deliver the real life sex scenes in all three books.? The film, however, is apparently a little too realistic for the books? copyright owner, Fifty Shades Ltd., and Universal Studios (which acquired the film rights earlier this year for $5 million) who have jointly filed a lawsuit against Smash Pictures alleging copyright and trademark infringement.

The complaint alleges that the film produced by Smash Pictures is a ?willful attempt to capitalize on the popularity of the Fifty Shades Trilogy.? The books, written by British novelist E.L. James, have enjoyed phenomenal commercial success with global sales of over 40 million copies. The plaintiffs claim that the books are a cultural phenomenon, with the New York Times going so far as to report that the first book ?has electrified women across the country, who have spread the word like gospel.? At this point you may be intrigued as to what could evoke such a stirring response from America?s frustrated housewives ? well, to quote the plaintiffs (because I couldn?t make this stuff up):

? [? ] the first book in a trilogy that follows the romantic and erotic relationship between Anastasia Steele, a na?ve college graduate, and Christian Grey, a wealthy but tormented entrepreneur. Anastasia first meets the handsome and intimidating business magnate when she interviews him for the school newspaper. Drawn to one another, Anastasia and Christian embark on a passionately physical love affair.?

The plaintiffs claim that Smash Pictures' film is a direct rip-off of the original novels and represents a knowing and willful violation of their copyright. The complaint further alleges trademark infringement by a subsidiary of Smash Pictures, Luv Moves, which launched various ?adult novelty items? (legalese, I think, for sex toys) using Fifty Shades? trademarks for marketing in an attempt to deceive the public. The plaintiffs are seeking an injunction to prevent further sales of the film and novelty items, as well as unspecified damages and all profits from the sale of the infringing works.

As we saw in class, parody can often be a defense against a copyright claim under the fair use doctrine. Porn spoofs are certainly nothing new to the entertainment world, giving us classic titles such as 'Forrest Hump', 'Breast Side Story' and 'American Booty', but the Fifty Shades adaptation arguably does not qualify as a parody. The film apparently faithfully reproduces the dialogue, characters and storyline from the original books with ?no attempt to parody, comment on, or poke fun at the Fifty Shades Trilogy in any way.? By its own admission, Smash Pictures has admitted that its film ?is very true to the book? and written ?to be as close to the series as [director Jim Powers] can get.? Based on this admission and some of the hilarious dialogue and staging examples detailed in the complaint, it would appear that the porn adaptation falls outside of the parody exemption in the fair use doctrine, and the plaintiffs arguably have a strong copyright claim against Smash Pictures.

However, it is questionable how much harm the defendant?s actions have actually caused the plaintiffs ? I?m guessing there?s not a huge crossover between the ?mommy porn? and hardcore segments of the market ? and I doubt whether the porn adaption has caused ?irreparable injury? to the plaintiffs? reputation and business as claimed. That said, I expect the plaintiffs will prevail in the case and be granted, at a minimum, injunctive relief to prevent further sales of the infringing works.

http://www.scribd.com/doc/115037512/Complaint-Universal-v-Smash-Pictures

http://www.bbc.co.uk/news/entertainment-arts-20553201

http://www.reuters.com/article/2012/11/30/entertainment-us-fiftyshadesofgrey-lawsu-idUSBRE8AT03Y20121130

http://www.holisticwisdom.com/fifty-shades-grey-dvd.htm (Site NSFW)

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Source: http://picker.typepad.com/legalinfrastructure/2012/12/when-mommy-porn-gets-real.html

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