Legal battle over Fifty Shades of Grey XXX adaptation/parody

May 15, 2012

A few weeks ago, the company that owns the Three Stooges trademark threatened to sue the company that made the porn parody Not the Three Stooges XXX. That lawsuit would lose. The right to make porn parodies, without permission from or payment to the original copyright holders, is protected by a very strong precedent.

This week, lawyers for EL James issued a cease & desist order against Adult Source Media, which recently announced plans to make a hardcore porn version of the novel Fifty Shades of Grey. This legal threat has a better shot. (Disclaimer: Daze is not a lawyer.) Excerpts from the April 24 XBiz article “Adult Source Media to Make XXX Adaption of Fifty Shades of Grey”:

Adult Source Media has announced that its Romance studio, Intimate Encounters, has begun pre-production of a XXX film adaption of the literary sensation, Fifty Shades of Grey.

The film will be a realistic and intimate adaption of E.L. James best-selling erotic novel.

“Women throughout the world are fascinated by Fifty Shades of Grey,” said Adult Source Media President Wendy Crawford. [...] The amazing thing is how I keep getting calls from girlfriends who traditionally are shy about discussing their sex lives, asking me what films they can watch to get a better visual of the story. That’s where Intimate Encounters comes in. This will certainly be the most highly anticipated adult romance film of the year.”

ASM VP of Sales John Amatucci has promised that Intimate Encounters will deliver a “spot on take” of Fifty Shades of Grey, re-creating the sex scenes that have propelled the book to the top of the New York Times and Amazon.com bestsellers lists.

“The feedback we’ve received, is that while women genuinely enjoy the literal aspects of the novel, what really has them intrigued is the incredible sex between the novels main characters Anastasia Steele and Christian Grey, and how that sex can be duplicated and re-created for the screen,” Amatucci said. “And that’s exactly what we are going to give them. In addition to the adult market, our vast network of mainstream retailers & distributors have been begging us to create a soft version, so we will have a version that will be on the retail shelves of every major chain in the country.”

That doesn’t sound like a parody of Fifty Shades of Grey, that sounds like a straight adaptation. The novel is a steamy BDSM romance with explicit sex scenes; the proposed film will be a steamy BDSM romance with explicit sex scenes. ASM execs boxed themselves into a corner by billing their project as a “romance” aimed at the novel’s female readers, and announcing their intent to “duplicate and re-create” the sex scenes in a “spot on take” of the novel. The proposed “soft” “mainstream” cut of the ASM/Intimate Encounters version would presumably be very similar to the inevitable Hollywood adaptation, except with a much lower budget. Where’s the parody element?

ASM execs sound clueless about the legal issues in the latest XBiz article:

Adult Source Media’s legal counsel has responded, reminding the author’s representatives that Adult Source Media’s upcoming project does not violate any intellectual property rights. As explained by ASM’s lawyers, “the naked truth is, the adult film industry is not excluded from the protections of the fair use doctrine.”

Producing a feature-length adaptation of a novel does not fall under “fair use”. If a Hollywood studio wants to make a feature adaptation of a best-selling novel like Twilight, it has to negotiate adaptation rights with the author. On the other hand, if a porn studio wants to make a feature-length XXX version of Twilight with nonstop fucking between pornstars with vaguely gothy makeup and plastic fangs, and they clearly label it “PARODY”, they’re legally in the clear and don’t have to pay Stephanie Meyer a penny.

Would ASM’s proposed film be a protected parody or an unauthorized adaptation? EL James and her lawyers seem to have a pretty good case here. Again, I’m no lawyer and don’t claim to understand all the legal issues at stake.

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