Smash Pictures Files Counterclaim in 'Fifty Shades' Legal Battle

Mar 4, 2013 2:30 PM PST

LOS ANGELES — As much as 89 percent of the content used in "Fifty Shades of Grey" grew out of a multipart series called "Masters of the Universe" that ended up in the public domain, according to a countersuit waged by Smash Pictures.

Smash, one of the adult entertainment industry's most successful brands, was sued last year for trademark and copyright infringement by Universal City Studios and Fifty Shades Ltd. over the sale and distribution of the Smash parody “This Isn’t Fifty Shades of Grey XXX." The plaintiffs later moved for a preliminary injunction, which a judge has not ruled on yet.

But today, Smash poked back against Universal and Fifty Shades, claiming that the "Masters of the Universe" series based on Stephenie Myer's "Twilight" novels was the impetus for "Fifty Shades of Grey," which Universal paid $5 million to turn into a film adaptation.

Smash responded with an answer, counterclaim and motion for a continuance, asking the court for a declaration that the federal copyright registrations for the trio of "Fifty Shades of Grey books are invalid and unenforceable and that the defendants have not violated copyright or trademark laws because the content is in the public domain.

Smash contends the material was published online between 2009 and 2011 in various venues, including FanFiction.net and the personal website of Erik Leonard.

But plaintiffs counsel, in a brief Friday, told the court that Smash's contention that 89 percent of the allegedly copyrighted  material” is “derived from” previously-published "Twilight" is "a highly misleading attempt to  manufacture an issue were none exists."

They also said that the counterclaim is a"transparently a last-minute bid to put off

indefinitely a court ruling" on a preliminary injunction that would stop the sale and distribution of  “This Isn’t Fifty Shades of Grey XXX."

"Defendants make it sound like the 'fan fiction' they mysteriously refer to was written by someone else," Universal and Fifty Shades counsel said. "What they fail to tell the court is that this fan fiction is actually a novel written by and owned by  Erika Mitchell – the same person who is the author of the 'Fifty Shades of Grey' novels and who is the principal of plaintiff Fifty Shades Ltd."

Today, U.S. District Court Judge Philip Gutierrez, who also is the judge involved in the Manwin vs. ICM Registry litigation, turned down Smash's motion for a continuance, a move that could signal a ruling on Universal's preliminary injunction motion.

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