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MAR
4
2 YEARS

'Fifty Shades' Porn Parody Countersuit Claims Books Are In Public Domain (Exclusive)

Defending against an attempt by Universal Studios to stop release of 'Fifty Shades of Grey: A XXX Adaptation,' Smash Pictures argues that the famous erotic books originally were published on fan-fiction websites.

Fifty Shades of Grey Cover - P 2012
'Fifty Shades of Grey'

In November, Universal Studios sued Smash Pictures, the makers of a porn film titled Fifty Shades of Grey: A XXX Adaptation. Universal is alleging copyright and trademark infringement and looking to get an injunction that prevents the porn version of EL James' blockbuster novel from being distributed.

Smash Pictures now has responded to the lawsuit with a counterclaim, and it's quite scintillating.

According to the adult film company, Universal has asserted invalid and unenforceable copyrights on the books by James, whose real name is Erika Leonard Mitchell. What's more, the defendant says that the property that Universal paid $5 million to turn into a film adaptation is in the public domain.

"On information and belief, 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 Stephenie Myer's (sic) Twilight novels. On information and belief, this content was published online between 2009 and 2011 in various venues, including fanfiction.net and the person website of Ericka (sic) Leonard. On information and belief, much or all of this material was placed in the public domain."

In its lawsuit, Universal says that the makers of A XXX Adaptation have made a "willful attempt to capitalize on the reputation of the book."

RELATED: 'Fifty Shades' Screenwriter Plans NC-17 Rating

The studio has pointed to quotes that Smash exec Stuart Wall gave L.A. Weekly as evidence about the adult film company's intentions and argues that proving copyright infringement won't be tough.

"By lifting exact dialogue, characters, events, story and style from the Fifty Shades trilogy, Smash Pictures ensured that the first XXX adaptation was, in fact, as close as possible to the original works," said the lawsuit.

In late January, the plaintiffs moved for a preliminary injunction. Smash finally has responded with an answer, a counterclaim and a motion for a continuance.

Represented by attorney Steven Lauridsen, Smash wants a declaration that the federal copyright registrations for the three Fifty Shades of Grey books are invalid and unenforceable and that the defendants have not violated copyright or trademark laws.

In response to a motion for continuance, the plaintiffs, represented by Andrew Thomas at Jenner & Block, say the claim that the Fifty Shades trilogy is in the public domain is "misleading and legally flawed."

"Defendants suggest that the Fifty Shades Trilogy is 'derived from' works by authors other than Erika Mitchell," says Universal's papers. "However, Defendants are in fact referring to an earlier version of the same story written by Ms. Mitchell, which they in their own improper deposition notice identified as 'Masters of the Universe.' Defendants do not and cannot provide any legal authority for the proposition that an earlier version of Ms. Mitchell's work is now in the 'public domain.' They can hardly defend their infringement of Plaintiffs' copyrights in the Fifty Shades Trilogy by claiming that it is substantially similar to Ms. Mitchell's own earlier work."

RELATED: 'Fifty Shades of Grey's' EL James: "I Haven't Slept Since January"

The terms of service for fanfiction.net don't seem to offer any precise indication that by submitting work, authors agree to have their material injected into the public domain. Depending on the facts, there could be an issue of Universal having "exclusivity," as The Hollywood Reporter addressed in a story last year concerning an author who sold movie rights to a story posted on Reddit. But as of now, Smash's lawyers haven't elaborated on how it intends to build its case that the mega-selling book isn't really copyrighted. Lauridsen was not immediately available for comment.

We've also reached out to Thomas and will provide updates if we hear anything.

In the meantime, a judge's opinion could happen quickly. On Monday, U.S. District Court Judge Philip Gutierrez turned down Smash's motion for a continuance, meaning that there will be a hearing soon on Universal's preliminary injunction motion.

E-mail: eriq.gardner@thr.com; Twitter: @eriqgardner