Fifty Shades of Grey and Fan Fiction: Do You Own Your User-Generated Content?

The book series Fifty Shades of Grey and social media user “terms of service” might not seem to naturally intersect. After all, one is about being bound to obligations. The other is a website agreement. The wildly popular Fifty Shades of Grey series written by E L James has provoked many different reactions. One of the effects is a recent copyright and trademark infringement lawsuit.

Smash Pictures produced a porn/adult movie entitled Fifty Shades of Grey: A XXX Adaptation. A predictable result was a lawsuit by Fifty Shades Limited and Universal City Studios, who own rights to the book franchise and movies respectively. According to a press report in the Hollywood Reporter, the lawsuit was just settled.

The plaintiffs alleged that Smash Pictures lifted dialogue from the James books and also was using trademarks related to the original Fifty Shades of Grey property. Those facts wouldn’t be of much special interest. Many rights holders would object to a key property being used in this kind of way.

But, the defendants raised an intriguing argument in Counterclaim, namely that the copyrights in the Fifty Shades of Grey books are invalid — and free for everyone to use — because “as much as 89% of the content of the allegedly copyrighted materials grew out of a multi-part series of fan fiction called Masters of the Universe based on Stephanie Myer’s Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including and the person [sic] website of Erika Leonard. On information and belief, much or all of this material was placed in the public domain.”

So a distinctive point in the case was the role of the fan fiction site’s user terms of service. Such contracts are a kind of Super-IP right in which the normal boundaries of copyright can be expanded and rights apportioned. It’s likely that most of us don’t read those terms of service before using the social media websites.

Fan fiction is a relatively new phenomenon, via which fans base their creations on other works. Further, sometimes many people derivate and add to that work. For example, if fans contribute in the “cloud” to a collaborative novel, the work could be jointly owned by all of the contributors, if that’s what the terms of service say. There are many possible variations, for example the website terms of service might provide that the website — and not the authors –own the copyright.

As the Hollywood Reporter noted, the current Terms of Service don’t seem to inject user-generated content into the public domain.

Specific popular social media websites Terms of Service determine the ownership and rights to your posted content. Two examples:

The Pinterest Terms of Service say, “You grant Pinterest and its users a non-exclusive, royalty-free, transferable, sublicensable, worldwide license to use, store, display, reproduce, re-pin, modify, create derivative works, perform, and distribute your User Content on Pinterest solely for the purposes of operating, developing, providing, and using the Pinterest Products.”

YouTube’s Terms of Service grant the social media website broader rights in user-generated content than does Pinterest, saying, “… by submitting Content to YouTube, you hereby grant YouTube a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and YouTube’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.”

In other words, you own the content you post to Pinterest and YouTube, but you grant substantial rights to the social media sites. These are often lengthy agreements that deal with many other issues, including critical points such as what happens to your user-generated content if you terminate your user account and user behavior and misbehavior.

Many, even most, of the contributors of dog, cat, and distinctive dancing videos just want their moment of fame. They would give up all rights in their content just for those moments on monitors throughout the world and seven figure “hits”. For the few who can turn fame into money, however, the choice might be a problem. What if the next mega-hit Sponge Bob or Batman emerges from user-generated content? What will the rights picture look like then?

Those creators who post their work on social media sites might want to read the Terms of Service before posting because they might just encounter at least one shade of a rights dispute someday.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

© 2009- Duane Morris LLP. Duane Morris is a registered service mark of Duane Morris LLP.

The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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