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Need A Last Minute Valentine’s Day Gift? Be Careful!

Posted in Branding, Copyrights, Dilution, Fair Use, False Advertising, Infringement, Law Suits

fifty-shades-of-greyDo you need to buy a last minute Valentine’s Day gift?  You may be thinking of picking up the best-selling book Fifty Shades of Grey.  Be careful – you need to read this post so that you are not confused and buy something else.

You would have to be living in a cave to not have heard of Fifty Shades of Grey.  Although I have not read the book, I saw the interview with author E. L. James on Barbara Walters’ “10 Most Fascinating People” show, and heard more about the 2011 erotic romance trilogy, which is going to be adapted to a movie.  Accordingly, Universal Studios LLC (“Universal”) and Fifty Shades Ltd. (“FSL”) want to protect this brand.

Universal and FSL brought a copyright infringement lawsuit against an adult film studio Smash Pictures Inc. (“Smash”) and others.  Specifically, they allege that Smash and the others’ unauthorized production and distribution of an adult film titled Fifty Shades of Grey: A XXX Adaptation (the “XXX Adaptation”) infringes on their copyrights, dilutes their common law trademarks, and constitutes false advertising.  They claim the “cheaply produced” knockoffs are likely to adversely affect the public’s perception of the books and the highly anticipated movie.  To prevent this, Universal and FSL have brought a motion for a preliminary injunction.  They allege that the title as an adaption supports their motion.

The DVD cover for the adult film includes the words “A Parody.” As I have not seen the movie, I cannot comment on whether it is actually a parody intended to comment on, to criticize or to ridicule the original Fifty Shades of Grey.  The Supreme Court has explained that a parody “is the use of some elements of a prior author’s composition to create a new one that, at least in part, comments on that author’s works.” See Campbell v. Acuff-Rose Music, Inc.  If a court finds that the XXX Adaptation is a parody, then it would be a fair use.  When I think of parody, Saturday Night Live comes to my mind.  However, as with pornography there are not bright line rules for what is parody, the court knows parody when it sees it.

In any event, this could be an interesting preliminary injunction hearing.