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'50 Shades of Grey' Porn Countersuit Claims Public Domain

By Andrew Lu on March 06, 2013 11:02 AM

Last year, Universal Studios sued adult film producers Smash Pictures over a porn parody of "Fifty Shades of Grey." Universal claimed that Smash violated its copyright and trademark rights.

Now, Smash has filed a countersuit against Universal, which is basically a lawsuit against someone who sued you.

Smash says that Universal asserted invalid and unenforceable copyrights on the book, reports The Hollywood Reporter. In fact, they claim that Universal paid $5 million for the rights to a book that is already in the public domain -- meaning that anyone in the public can lawfully and freely use it.

In its countersuit, Smash says that as much as 89% of the material in the books came from works of fan fiction that were published online from 2009 to 2011. But even if this is true, does this mean that Universal owns no rights to the work?

Generally, works published in the United States enter the public domain only after the life of the author plus 70 years after the date of her death. In addition, a work can enter the public domain if the author specifically donates it to the public and makes her wishes known.

In the case of "Fifty Shades of Grey," Smash is claiming that the author of the book, E.L. James, derived the book from other works that were published online, according to the Reporter. Smash also suggests that this online publication means that the works were donated to the public.

However, Universal defended its copyright by pointing out that the work from which E.L. James allegedly derived "Fifty Shades of Grey" is her own prior work. Universal says it is an earlier version of the same story by the same author.

Additionally, Universal says that nowhere on the website where E.L. James published the work does it state that the author agrees to donate the work to the public.

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