Porn Names, Part II

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Geoff's musings over porn star names aroused, er, got me thinking about a related  "fair use" issue, namely, the porn industry's unauthorized use of slightly altered titles of famous motion pictures.  Such as On Golden Blonde.  Breakfast on Tiffany. Inspect Her Gadget.  And any on the Top Ten list compiled by BBspot, which begins, at #10, with Forrest Hump.

Each use is an obvious commercial attempt to cash in on the widespread awareness and recognition of the original title.  Each use is also an obvious commercial attempt to capture the prospective buyer's attention, to stand out in a crowd of titles.

But are these uses "fair uses"?

The issue is governed by trademark, and not copyright, law.  That is because copyright protects the contents of the motion picture On Golden Pond but not its title.

This is good news for the porn world because the copyright standard is more rigorous and subtle than the trademark standard.  Under the copyright "fair use" test for parody promulgated by the Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the only potentially qualifying knock-off is a genuine "parody," which the Court defined as "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."  (510 U.S. at 580).  As Justice Souter cautioned, if the knock-off “has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes . . .” (Id.)  While I have not had the pleasure of watching Presumed Impotent, I suspect it is not a commentary on the main themes of Presumed Innocent.

By contrast, the focus of trademark law is likelihood of confusion.  I am willing to wager that no one could purchase Romancing the Bone -- complete with X-rated cover art -- in the belief that they will be watching Michael Douglas and Kathleen Turner in the Robert Zemeckis romantic adventure movie.

The more interesting -- and as yet unresolved -- issue is whether Saving Ryan's Privates constitutes trademark dilution of Saving Private Ryan.  The courts seem to apply a looser definition of "parody" in dilution cases, pointing out that an outrageous and obvious spoof actually actually enhances the distinctiveness of the original mark.  For example, the Tenth Circuit explained in Jordache Enterprises, Inc. v. Hogg Wyld, Ltd., 828 F.2d 1482, 1490 (10th Cir. 1987), that use of the term “Lardashe” on jeans does not dilute the “Jordache” brand  because “parody tends to increase public identification of a plaintiff's mark with the plaintiff.”

But for now, let us take comfort in the words of a certain princess in an unnamed X-rated knock-off of a famous science fiction movie: "Is that a light saber in your robe, or are you just glad to see me?"

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