Page 34 - AVN February 2016

LEGAL NEWS
for Section 2(a), FALA explained that the statute does
not serve any substantial government interest. Cases
such as Lawrence v. Texas (which struck down an
anti-sodomy law) establish that the government does
not have a legitimate interest in legislating morality,
so the government cannot claim that Section 2(a) is
important because it upholds propriety. Section 2(a)
does not free up government time and resources by
refusing to protect marks it finds distasteful, either,
because litigation over Section 2(a) would wipe out
any potential cost savings. The government could
also not plausibly argue, as it had sometimes in the
past, that granting a trademark registration served as
a seal of approval from the government. The general
public recognizes that registering a mark is simply a
ministerial function, and the trademark office even
explicitly disclaims any endorsement of a given
trademark.
Finally, FALA argued that Section 2(a) is so
vague that it cannot be applied with anything
resembling consistency or predictability, and is
thus unconstitutional. The history of trademark
registrations includes several marks that are just as
“immoral” or “scandalous” as marks that were denied
registration because of Section 2(a). This is the
typical “one man’s vulgarity is another man’s lyric”
scenario; one trademark examiner might be disgusted
by a mark and refuse registration, while another
might find the same mark funny and clever and grant
registration. It is extremely difficult to tell which
marks might be refused registration on Section 2(a)
grounds, and so the inevitable effect of the statute
is for businesses to choose more “family friendly”
marks, thus unconstitutionally depriving the market
of more colorful ones.
The Decision
The Federal Circuit agreed with FALA’s positions.
For more than thirty years, every court that previously
upheld Section 2(a) relied on In re McGinley—a
case that upheld Section 2(a), but did so without any
real degree of constitutional analysis.
The Tam court finally found that Section 2(a)
did not withstand scrutiny. The centerpiece of the
decision was the “doctrine of unconstitutional
conditions.” Because a company invests a great deal
of time and resources in choosing and mark and
would not want all that effort to go to waste due to
the possibility of an adverse Section 2(a) finding, the
court found that the law created a significant “chilling
effect” on protected speech, and acted against that
speech on a viewpoint-discriminatory basis.
The government argued that Section 2(a) was
simply a limitation on the federal subsidy of
trademark registration, but the court did not find
this convincing. Congress and governmental agencies
cannot withhold funding or other benefits unrelated
to the purpose of a government program based on
speech unrelated to the program. The court found
that federal registration is a regulatory scheme, not
a subsidy, regardless of what the government wants
to call it. And the purpose of the federal scheme
of trademark registration is to assist consumers in
the marketplace by avoiding confusion amongst
competitors, not upholding Victorian notions of
propriety.
While the court only explicitly struck down
the “disparaging” portion of Section 2(a) and left
the “immoral and scandalous” portion alone, it
affirmatively overruled In re McGinley, which was
the seminal case for Section 2(a)’s constitutionality.
Without the ability to rely on McGinley, and because
there is no real distinction between the “immoral and
scandalous” and “disparaging” portions of Section
2(a), the former portion of the law will most likely
be struck down when it is next challenged in court.
The Trademark Office itself recently acknowledged
this reality. In a letter brief in the pending case of In
re Brunetti, regarding the “immoral and scandalous”
portion of Section 2(a), the Office admitted that it
does “not believe, given the breadth of the Court’s
Tam decision and in view of the totality of the Court’s
reasoning there, that there is any longer a reasonable
basis in this court’s law for treating them differently.”
The Trademark Office is now on record as saying it
does “not believe that Section 2(a)’s prohibition on
registration of scandalous and immoral marks can
withstand challenge under the current law of this
Circuit.”
Conclusion
What does this mean for the adult entertainment
industry? All of those “immoral” trademarks that
the industry has been unable to register are now
registrable. Adult entertainment companies that
have names that couldn’t get past the examiners
in the past, should now find the wind blowing in
their direction. Why does this matter? Trademark
registrations are important, if you want to run your
business properly. They protect your mark in the
marketplace, they allow for enforcement of important
rights at the border, and in court, and they create
a raft of important legal presumptions. Even if you
don’t intend to litigate, trademarks are valuable assets
that are factored in to the value of your company.
From a constitutional perspective, any decision
that strengthens the First Amendment strengthens
the adult industry. The industry is, for the most
part, an intellectual property industry. And, it wasn’t
just trademark rights that could be threatened by
regulations enacted to enforce notions of “morality.”
Over the past few years, some law professors have
even suggested that the copyright laws should be
amended to preclude porn companies from enjoying
copyright protection. This notion is largely dead due
to the Tam decision.
Therefore, the adult entertainment industry is
stronger and freer because of five Asian guys from
Portland. The Slants should be this industry’s new
favorite band.
Kay Brandt Teams With Kinkfunder to Crowdfund Next Movie
Veteran adult film director Kay Brandt has launched a crowdfunding campaign
for her next project based on a series of her erotic novels.
Brandt is working with a new Chicago-based platform called Kinkfunder,
which is making its debut with the campaign.
“They wanted me to be their first campaign,” Brandt told AVN. “Coming on
the heels of Safe Landings and the cross marketing of the book and making a
movie based on the book this interested them because it’s a different angle with
a bit more substance to it.”
Brandt wrote and directed Safe Landings last year for Adam & Eve, adapting
the screenplay from her book of the same name. The movie was nominated for
six 2016 AVN Awards, including Best Director-Feature, Best Drama and Best
Screenplay.
She said the Kinkfunder campaign is to create the budget for a film about the
erotic short story, Servant Quarter Stepbrothers, Story 1: Revenge of the Stepmother.
It’s the first release in a book series about a scorned woman who’s inherited
everything from her scoundrel of a billionaire husband in the shadow of his
untimely passing.
The filmmaker said she turned to crowdfunding primarily because of the
creative license it affords her.
“There’s a lot of freedom in being able to have your own funds and that’s what
interests me is the freedom,” Brandt said.
“I have a series of short books that sell very well on Amazon that would make
great movies. Because they’re short books, I want to combine Book 1 and Book 2
into the first movie. The second book is called The Maid and the Virgin. The stories
take place in one location in a mansion. It’s a twisted, dramatic, erotic story.”
Brandt is setting out to raise $40,000 for what would be a three-day shoot.
She already has an all-star cast attached to the film that includes India Summer,
August Ames, Mercedes Carrera, Dava Foxx, Mia Malkova, Xander Corvus,
Marcus London and Dane Cross. Ames starred in Safe Landings opposite Corvus
and London.
“I’ve spoken with all of them and they’re excited about the idea and really
want to be involved,” Brandt said. “The idea of something like this working gives
hope to all of us.”
She has set up a list of rewards for the top funders of the 30-day campaign.
“For as little as a 25 dollar contribution, anybody can be a part of creating the
budget for this project,” Brandt continued.
“My big feeling is whatever happens with this is if me or someone else like me
doesn’t go forward and try this new avenue, we’re just kind of stuck to the same
old, same old as filmmakers.
“As an artist to have other options is really important. If we achieve our goal,
then the production will begin in February.”
Brandt has written and directed more than 40 adult films since 2009.
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