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Marcel Duchamp’s derivative work, Mona Lisa with mustache and beard

Is Fifty Shades of Grey a copyright infringement? One wonders. Like so much in copyright, judgement depends on nuanced interpretation. Derivative works are protected by copyright, but copying text is definitely an infringement. When is too much too much? Really the courts are the only place where this can definitively be decided. Publishing Perspectives has a provocative piece by Dennis Abrams reporting on Nathaniel Downes essay at Addicting Info. Certainly some of Downes’ examples look damning, but Stephanie Meyers seems unwilling to act against E. L. James, author of the wildly successful Fifty Shades of Grey. Should we imagine she is holding herself above the fray, protecting her dignity, or that she has taken legal advice and concluded there’s no case here, or that she’s still thinking about it?

The estate of Margaret Mitchell was able to sue Houghton Mifflin and Alice Randall, the author of The Wind Done Gone a retelling of Gone with the Wind from a slave perspective.  The case was settled out of court, and the book published with some changes and a notice on the front saying it is an unauthorized parody, after Houghton Mifflin agreed to make an undisclosed donation to Morehouse College.  The suit was not based on the use of direct quotation, but on the appropriation of characters and situations and the Eleventh Circuit Court of Appeals did find for the author on this point.

A translation is defined as a derivative work, but you’d need to get permission to publish one. A derivative work isn’t automatically fair use: it can be fair use but requires transformation to qualify. Duchamp transforms the Mona Lisa, but a translation doesn’t (shouldn’t) transform the original into a new artistic creation. Fan fiction gets by because it tends not to go beyond the in-group that creates and consumes it. When it does questions will arise.

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