KWIKH founding/managing partner Larry Iser was quoted in Jean Yung’s Daily Journal article on the lawsuit filed by Universal Studios and author E. L. James against adult film studio Smash Pictures over Smash’s unauthorized adaptation of the wildly popular novel Fifty Shades of Grey.
According to several copyright and trademark lawyers, Smash’s most likely defense will be “fair use,” which permits copyrighted works to be reproduced for certain limited purposes such as comment and criticism, among others.
“If Smash Pictures is claiming ‘fair use’ by means of parody, it must prove that its film is commenting upon or criticizing the original copyrighted work and not simply misappropriating or trading off the title and sexual themes in order to sell the porno film,” said Larry.
Fair use can be an elusive concept, so it’s not always clear what is infringement and what is not. You might say it’s, uh, a grey area. You might say that—we certainly wouldn’t.