What is your porn star name?

By Geoffrey Gerber

Apparently you take the name of your first pet and add the name of the street on which you were raised. Sorry I couldn't find a safe link to cite for authority, but there is an R-rated monologue on point in YouTube.  -- Warning! If you do not employ this somewhat random name generation technique, you might be inviting a lawsuit.

No there isn't one yet, but the New York Post's Page Six reported that Katie Holmes, former Dawson's Creek ingenue, is considering available recourse (presumably legal) to pursue against Katee Holmes. Apparently Ms. Holmes ("ee" not "ie"), a self-proclaimed virgin, announced her intention to launch a career as a porn star by filming her first sexual encounter. I will  not provide the link to her website (with its countdown clock), but the Defamer blogs about it.

Normally the career choices and self-promotional efforts of eighteen-year-old fashion students do not merit much serious consideration for litigation. The difference in this case: the New York Post reports that the young woman in question "changed her name" to Katee Holmes to launch her direct-to-video career. Such a calculated move invites a right of publicity lawsuit, the crux of which is invoking a celebrity's identity to obtain a commercial advantage.

Why hasn't Katie Holmes (or is it Kate Cruise) sued already? Could it be that the name Katee Holmes is not the same as Katie Holmes and therefore does not invoke the celebrity's identity? Could it be that lots of people might share the names Katee or Katie Holmes and, thus, by using such a common name the small-screen vixen-to-be is not invoking the silver-screen star's identity? Could be, but it isn't.

The fashion student who is drawing designs for her birthday suit has done more than merely change her name. Her manager, Shy Love, is quoted in the New York Post as saying, "Katee is using the name as a tribute to Katie, who has always portrayed an innocence in everything she's done, beginning with 'Dawson's Creek.'" Now she has gone and done it. She has clearly invoked a celebrity's identity, not just her name.

I do not know if the eventual exhibitionist has legally changed her name or merely adopted a nom de guerre. Would it matter? The issue is not one of self-identification, but rather it turns on invoking the identity of the celebrity. Name alone is not enough.

Unfortunately, the boundaries between First Amendment freedom of speech and the right of publicity remain unclear. Our blogging crew here was involved with one significant decision in this field, Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc) that stands in sharp contrast with another decision, Winter v. DC Comics, 69 P.3d 473 (Cal. 2003). Both of those cases involved the creation of fictitious and fantastic comic-book characters that allegedly invoked the identity of celebrities. 

The issue for the two Ms. Holmeses involves the use of one person's name to intentionally invoke the celebrity and marketing power of another persons identity. How would the courts analyze such a case? When considering whether the use of a name in a title is protected by the First Amendment, courts have applied a relatedness test to see whether the name in the title is related to the content of the First-Amendment protected work. Even something seemingly as simple as this has prolonged litigation when the seminal case on this issue, Rogers v. Grimaldi, 857 F.2d 994 (2d Cir. 1989) was applied in Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2001).

Ultimately, I think the court would have to determine whether the First Amendment prevents the Mother of Suri from testing the reasons for this wilting maiden's name change, or whether those reasons must be determined by a jury. Is it sufficient to state that you chose a nearly identical stage name as an hommage? Is the allusion to the innocence of Joey on Dawson's Creek enough to assert that a pornographic film's exploration of virginity is a parody?

Regardless, there are much less risky ways to come up with your porn star name. If the "pet-plus-street" approach doesn't work for you, just think of your favorite common law or Supreme Court cases. My contracts professor in law school advised that Hadley V. Baxendale was credited with a role in Behind the Green Door. Anyone for Mack Merryland or Berry Madison? How about Loving Virginia, Fletcher Peck, or Hammer Dagenhart?

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