Devinn Lane Files Suit Against Vivid, Digital Playground, Others

[RawAlex]

Originally Posted by pornlaw

Actually its the maturation of any industry. Consolidation, cannibalism or survival of the fittest ? Only the strong survive in a shrinking economy.

And if you meant that grabbing the domains of pornstars to drive traffic, then yes, the low hanging fruit is gone.

It use to be that pornstars were told that it would be $500 - $1000 - $1500 to buy back their name from someone who was enterprising enough to grab it before someone else did.

Now its going to be pay and give it back, or pay to defend an IP suit.

This industry is no different than the music industry. The record labels no longer have the power they once did. Tower is gone, Virgin doesnt sell that much music and MTV doesnt show videos. Illegal or legal downloads have given power back to the musicians to control distribution of their content. Clip4Sale.com is not that much different.

Times are a changing....

Michael

www.AdultBizLaw.com

The question will be about things like fair use, etc. I don't for a moment support people who buy domains just to ransom them to people, but at the same time, I also think that some of these broader swipes she is taking should fail. It is particularly key that she has almost certainly performed "work for hire" that would include her image and her name as a result. At some point, her "star" name isn't hers alone anymore, but is something that has been sold off in pieces to others, who in turn resell it to others.

Imagine someone who picks up 50 DVDs and makes a membership / fan site. What domain should he use? sexydevinnlane.com or somepornstarsite.com?

Let's say he runs sexydevinnlane.com for 2 years, and then decides to shut it down. The domain is paid for 5 years. Should he just turn it off? A parking page? Perhaps redirect the traffic to a DVD site that might have some of Ms Lane's DVDs for sale?

Should she have entire and total control of all uses of her name at all times in all ways, without restriction? Does this mean that a work for hire contract with a pornstar doesn't grant any rights at all to use their name? Does it mean that content with a particular star legally licensed and collected together cannot be identified by a domain name?

Further, while she was aware of the domain registrations three years ago, why would she wait this long to take action to protect her trademark name? Did she jealously protect her trademark, or is there a sudden outside influence that has her showing up with lawyers in tow?

Any ideas?

There is much here

[pornlaw]

Since it appears that XBiz is hungry for a comment I will not fully respond to RawAlex but I can tell you that you are incorrect in your analysis of trademark law.

Copyright is a much different animal. Fair use does not apply to trademark. Licensed content does not equate to rights to use her name in a top level domain name.

If your post is indicative of your business practices when it comes to owning and profiting from the names of performers, I strongly suggest that you seek an opinion from an attorney experienced in trademark law.

Michael

www.AdultBizLaw.com

[RawAlex]

Originally Posted by pornlaw

Since it appears that XBiz is hungry for a comment I will not fully respond to RawAlex but I can tell you that you are incorrect in your analysis of trademark law.

Copyright is a much different animal. Fair use does not apply to trademark. Licensed content does not equate to rights to use her name in a top level domain name.

If your post is indicative of your business practices when it comes to owning and profiting from the names of performers, I strongly suggest that you seek an opinion from an attorney experienced in trademark law.

Michael

www.AdultBizLaw.com

I have dealt with trademark and copyright lawyers on this sort of subject in the past, and their opinions are split all over the place on the subject. You may want to look under things like "fair use in retail", or "trademark nominative fair use". That last one is very specific to this sort of case, otherwise domain names with pornstar names in them used to promote those pornstars would be a problem.

My feeling is that if some of the defendants in this case have a bit of money and are using the domains for appropriate uses, they can very likely defend themselves well. The guys just redirecting traffic generically or jacking it around likely will run for the hills (like the guy with every-model-name-in-the-world.org that spams google (something to do with dollars and speed).

You will win some and lose some, there is plenty of space to argue here that a domain name isn't any different from a sign in a store window, or a name on a DVD box.