To say there has been a lot of controversy surrounding E.L. James’s best-selling Fifty Shades of Grey would be putting things mildly. Fifty Shades, which chronicles the BDSM relationship between Anastasia Steele and Christian Grey, has certainly raised more than a few eyebrows, both because of its subject matter and its popularity. While these would be controversy enough, Fifty Shades adds another wrinkle – it originally was a piece of Twilight fan fiction entitled “Master of the Universe.”

From the onset, it is important to understand what this blog is about (the book Fifty Shades of Grey) and what it is not about (the legal issues of fan fiction in general). Nonetheless, to understand the particular issues with regard to “Fifty Shades of Grey,” some “fandom” terms must necessarily be defined – namely “fan fiction” and “alternate universe.” “Fan fiction” (sometimes called “fanfiction” or “fanfic”) refers to unofficial stories written by fans of existing fictional works about the characters, places, and events portrayed in those works. For example, a Harry Potter fan fiction might present what happened to Harry, Ron, and Hermione after Voldemort’s defeat, or a Star Wars fan fiction might chronicle the adventures of Luke, Han, and Leia between A New Hope and The Empire Strikes Back. Sometimes, fan fiction writers draft stories where they change something about the existing work’s universe and address how that change affects the characters from those stories. These “what if” stories are commonly called “alternate universe fics” or “AUs.” Some AUs focus on how minor decisions could have staggering effects on the story as we know it. For example, an AU Star Wars fan fiction might ask “what would have happened if Luke Skywalker didn’t purchase R2-D2 in A New Hope?” and then follow how the results of that different choice affect the “Galaxy Far, Far Away.” Other AUs take established characters and drop them into new worlds that have little in common with those of the original work. One common example of these types of AUs would be “what would happen if the Hobbits from Fellowship of the Ring attended a modern American high school?” Fan fiction in general, and AUs in particular, remain vastly popular with Internet audiences, as evidenced by the large archives hosted by sites like theforce.net or fanfiction.net.

It is important to note that a significant amount of fan fiction exists, and that many of the authors who created the original works do not take issue with fans “playing in their sandboxes.” Ultimately, however, the decision as to whether to permit fans to create fan fiction and other fan works lies with the copyright holder of the original works upon which the fan works are based. While many professional authors are comfortable with (or even support) fan works based upon their creations, that comfort usually dissipates when unauthorized stories are offered for sale. For example, the famous Eleventh Circuit case of Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (2001), was brought by Margaret Mitchell’s trustee to prevent the publication and sale of Alice Randall’s The Wind Done Gone, an unauthorized retelling of Gone With The Wind from the point of view of Scarlett O’Hara’s slave half-sister. (This case also added an additional wrinkle regarding parody, which is beyond the scope of this blog).

It is no secret that Fifty Shades originated as an alternative universe Twilight fan fiction featuring Stephanie Meyer’s characters Edward Cullen and Isabella “Bella” Swan. The original Twilight-version of the story was widely circulated and read on the Internet. After achieving popularity in the Twilight fandom, James removed the fan fiction, reworked portions of it to remove references to Meyer’s specific universe of shapeshifters and sparkly vampires, renamed and tweaked the main characters in an effort to reduce the Edward and Bella characteristics, and published the revised story as a trilogy.  It quickly became a best seller.

Upon learning of the origin of Fifty Shades last summer, my interest was piqued. Although Stephanie Meyer, the author of the Twilight series, indicated that she has no interest in bringing suit against James for copyright infringement, as a copyright attorney with an interest in fandom culture, I could not help but ask myself if a colorable issue regarding copyright infringement existed. There was really only one way to answer the question – read the novels. (In the interest of full disclosure, I am not a fan of either work and have serious complaints with the portrayals shown in both, though I disliked Fifty Shades more).

Because copyright infringement is often shown by demonstrating access and substantial similarity, and because there can be no question as to access, this brief analysis focuses on whether there is at least a reasonable question of fact regarding substantial similarity between Twilight and Fifty Shades. When addressing substantial similarity, it is important to remember that copyright protects the expression of ideas, and not the ideas themselves. For example, there is no copyright in the idea of an interplanetary war between an oppressive government and freedom fighters; however, there is a copyright in the specific expression of this idea as found in Star Wars.

            Turning to Twilight and Fifty Shades, much of the similarity appears to be on the level of ideas, not expression. Twilight is a romance between high school student Bella Swan and teenage-appearing “good” vampire Edward Cullen, which is complicated when “bad” vampires decide they would like to kill Bella. Fifty Shades chronicles the coercion of recent college graduate Anastasia Steele into a BDSM relationship with wealthy businessman Christian Grey, which is complicated when Anastasia decides she wants an emotional relationship with Grey (and he’s not willing to provide the same). Although the general plot lines of Twilight and Fifty Shades have different focuses, there are some similarities. For example, both Twilight and Fifty Shades use the idea of the male leads engaging in stalking behavior towards their romantic interests, and both similarly betray this behavior as romantic. Even here, however, the idea is expressed differently. (Christian Grey tracks Anastasia’s movements by her cell phone; Edward Cullen watches Bella sleep).

            With regards to the two main characters, Edward and Bella in Twilight and Anastasia and Grey in Fifty Shades, there are definite similarities. Those similarities, however, appear to have been revised such that they exist primarily at the level of ideas.  For example, although the male love interests both have sociopathic tendencies and the female love interests are presented as clumsy, younger women with self-esteem issues, such similarities are ideas (commonly referred to as character tropes). These sorts of tropes were not created by Twilight, and can be found in a number of other works. Heathcliff of Wuthering Heights could be described as a man with sociopathic and stalker tendencies. Andrew Lloyd Weber’s interpretation of the titular Phantom in Phantom of the Opera is also easily called to mind. Indeed, the plot of Weber’s Phantom interpretation is that the naïve, insecure young woman is [stalked] romanced by the [sociopathic] misunderstood Phantomand falls in love with him. (If there was any question as to this last bit, Weber put it to rest with Love Never Dies, his Phantom sequel, though it appears that Gaston Leroux, the original author of The Phantom of the Opera, intended the Phantom to be a psychopathic murdering villain.) Similarly, a number of romance stories feature insecure, klutzy female leads (for example, Rachel Leigh Cook’s character in She’s All That, not to mention a large number of Harlequin heroines). How those characters play out the tropes - the expressions - are, for the most part, different between the two works.  Some personal details, however, appear in both characters. For example, both Christian Grey and Edward Cullen are highly skilled at the piano and were adopted earlier in their lives by affluent families.

            Ironically, it is the minor characters (i.e., the characters other than the romantic leads) that share the most significant similarities between the two works. Unlike some authors of paranormal romance, Meyer presented a quite interesting cast of minor characters with unique stories and memorable ticks. Most of the Twilight minor characters’ unique quirks and histories are also present in the Fifty Shades versions, making is easy to immediately call to mind the Twilight counterparts for the Fifty Shades names. For example, Bella’s mother and Anastasia’s mother have nearly identical histories and portrayals – both are flighty, impulsive women who have been married several times and are currently married to professional athletes whom they follow around the country, but remain caring towards their daughters. There are also very strong similarities between Bella’s father and Anastasia’s step-father, as well as between Bella’s friend Jacob and Anastasia’s friend Jose to name a few.

            Viewing the totality of the circumstances, there appears to be a legitimate question of fact as to whether substantial similarity could be found. A quick Google search underscores that a question of fact is present, as readers are divided as to whether Fifty Shades and Twilight are substantially similar.

Although this specific question will likely never be answered by a jury, Fifty Shades is not going to be the last fan fiction turned professional fiction we will see. As fandom – to include fan fiction – continues to increase in popularity, it is likely that more and more fan fiction authors will attempt to capitalize on the fame they garner.  How copyright owners (and courts) will respond will likely turn on a case by case analysis.