SOPA and porn parodies: closer than you think

Wednesday, January 18, 2012 marks an intriguing confluence of events. No, it’s not some sort of Mayan end-of-the-world situation, but it is the day on which Wikipedia, Google and a number of other big websites will be protesting the Stop Online Piracy Act (SOPA). It’s also the day on which the Adult Entertainment Expo kicks off in Las Vegas.

How on Earth are the two related? Bear with me.

I’ve written before about how SOPA has the potential to kick off the equivalent of an internet Cold War. If enacted, the legislation would give U.S. authorities power to block certain websites. The target would be file-sharing enablers such as the Pirate Bay, but could also encompass other undesirable websites, which historically has meant porn. But that’s not the tree I’m barking up today.

At this year’s AEE, porn titan Vivid is going to be touting its latest big-budget production, a triple-X “parody” of Star Wars that is being released this month. Watch this trailer - which is perfectly safe for work, given that it’s completely devoid of even suggested sex or nudity - and you’ll see why I put the word parody in quotes:

On a related note, if you Google search “superhero porn parody,” my blog shows up on the first page of results. Needless to say, my mother is proud. But seriously, this development seems to be the explanation for why a post I wrote on the topic back in October continues to get big traffic. Somehow, I’ve become an authority on superhero porn parodies. And just like anyone who shoulders a dubious distinction, I guess there is a certain pride in it.

As such, I decided to put some effort into answering the one burning question I still have when it comes to porn parodies: How do they get away with it? It’s a question that rampaged back into consciousness after watching that Star Wars parody trailer. If the film copies the original shot for shot and has some identical dialogue, isn’t it more of a copy and not a parody?

I put the question of parodies to Pink Visual, a producer of adult content that threw a party during the Consumer Electronics Show last week, and got an answer from general counsel Jessica Pena-Sackett. She said parodies are tricky but, if executed properly, can be defended on the principle of fair use:

To date, there has not been a bright line rule with regards to parodies in the adult context. A bright line rule would be difficult to establish since every case/parody is different. On the one hand, the argument could be made that due to the nature of our content, a parody could tarnish the name of a rights holder. However, on the other hand, the argument could be made that parodies in the adult context would qualify for a fair use defense, as with other parodies.

More intriguing, however, was her suggestion that some parodies may actually be the product of deals made between involved parties. Marvel and its superheroes were the basis of our conversation, but this could also apply to Star Wars and other parodies.

Something to be aware of is that, although one suspects a company such as Marvel has not entered into a private agreement regarding parodies of their content, one never knows the substance of private agreements.

Could Marvel and its owner Disney or even George Lucas have signed agreements with porn companies that allow parodies of their intellectual property? I could ask them - and I will - but as Pena-Sackett points out, they’re unlikely to acknowledge any such deals.

One could take the absence of a lawsuit as evidence of just such an arrangement. After all, if Lucas isn’t suing such a blatant rip-off of his movie, perhaps he’s benefiting from it in some way? This could take the form an actual agreement with Vivid, or it could be an extraordinarily progressive attitude - Lucas might consider a porn parody as another step toward his goal of total pop culture domination with Star Wars.

More likely is the fact that he has already been burned on this issue. The Star Wars producer certainly hasn’t been shy about suing anyone and everyone who encroaches on his IP and he’s usually been successful. But in 2002, he lost out to Media Market Group, which had produced an animated porn parody of his film called Starballz. “The Star Wars films are so famous that is extremely unlikely that consumers would believe that Starballz is associated with Star Wars or Lucasfilm,” said the judge.

Put it all together and we appear to have an explanation. Porn companies are able to get away with strikingly similar parodies of existing IP either by cutting secret deals with the original producers or by convincing courts that their films can’t possibly be confused with said content. That can probably be achieved by slapping a “XXX” and some nudity on the cover of the packaging.

Seems kind of easy, doesn’t it?

That’s a rhetorical question, of course - and it makes SOPA look really evil. Porn producers can get away with making big profits through obvious copying and exploitation of the intellectual property of mainstream entertainment companies, yet those same mainstream copyright holders are going after websites that allow individuals to swap movies and music that they probably never would have bought in the first place.

Oh America, what a wonderfully messed up place you are. Where else is censorship protested and pornography celebrated on the same day?