opinion

Piracy Journal: It’s Perfectly Legal ... But ...

Peter Phinney

A trademark is a form of protection for any word, name, symbol, or device used in commerce to “identify the goods of one manufacturer or seller from goods manufactured or sold by others,” and to indicate the source of the goods. A trademark is usually a brand name such as Coca-Cola®, the Nike swoosh, and FedEx®. It can also be a product name like Barbie®, which is manufactured by Mattel®. Registering a trademark can be done online at the U.S. Patent and Trademark Office.

A copyright is a form of protection for original works of authorship fixed in a tangible medium of expression. Copyrights protect “original works of artistic expression” including books, movies, songs and lyrics, photographs, graphic designs and other similar creative works. Registering a copyright can be done online at the U.S. Copyright Office.

The first step toward uniting is to treat one another with respect. If we continue to steal from one another, then we face a very long struggle against those from the outside who steal from us.

The German courts recently ruled that pornography could not claim copyright because filming people having sex does not rise to the level of original authorship. That ruling will be contested no doubt, and if it stands in Germany, there will likely be a cascade of test cases to follow because using similar reasoning, nature or architectural photography cannot claim copyright — imagine National Geographic’s and Getty Images’ outrage.

I participated in the FSC Summit last month to present at one panel and attend another. I had the pleasure of presenting at a roundtable discussion entitled, “They’re Selling My Stuff on eBay,” which explored trademark infringement and counterfeit pleasure products being sold online. As I mentioned last month, we’ve been engaged in a pilot program sponsored by the FSC looking at trademark infringements and counterfeiting of pleasure products for several months, and I was there to report our results. We’ve had many successes in getting sale of counterfeit products taken offline.

I also attended the FSC ethics panel, which was about a new Code of Ethics that’s been developed by the FSC with the hope that all of the adult industry will integrate its fundamentals into our standard business practices. The code is divided into six major sections: respecting self-determination, protecting minors, safeguarding privacy of performers and consumers, implementing professional business practices, promoting social responsibility and enhancing the industry and its professions. All of these are fabulous goals. I think we need to acknowledge that our industry does not have a spotless ethics record. But we’ve improved practices in recent years and we’re being taken seriously now by many who just 10 years ago thought of us as exploiters at best, and more often as bottom feeders and criminals.

As one who’s focus for many years has been on creative rights and protecting original work and original ideas, my interest in the code of dthics should be no surprise. My clients depend on me to protect their content and to prosecute those who use that content without permission —especially when others profit from that illegal use. That is the essence of our fight against piracy. It’s not about shaming a consumer who shares a video with a friend. It’s about stopping a syndicate of thieves who distribute stolen property online and make a boatload of money doing so. On the content side, our fight is about stopping criminals from stealing original videos. And on the pleasure products side, our fight is about counterfeiting and knockoffs and pursuing people who use someone else’s brand name to sell inferior merchandise. In all of these cases, crooks are using someone else’s hard work to avoid doing the hard work themselves — and profiting from something that does not belong to them.

Through the course of this pilot program working against counterfeiting, we were contacted by a manufacturer who complained that someone had copied their product — reproduced it exactly, and the knockoff is now up for an award as pleasure product of the year. We looked into the claim and found that the product was indeed a direct copy of the original design including materials, colors, configuration of the various parts and even the directions for how to use it.

What kept this copy from being legally actionable as counterfeit, was that the new manufacturer was not using the name that the original manufacturer had given to the product, which was a trademarked name, and they were not mentioning the original manufacturer. They simply took what was a really good idea someone else had developed, and they ran with it under their own brand name and under their own product name. They didn’t build a “better mousetrap,” they simply built the same mousetrap, but they called it something slightly different. And this is not a small company — so their own brand is well recognized and they didn’t need to rely on the good will built up by the original manufacturer — they had plenty of good will built up on their own.

What made this situation painful for the original manufacturer was that the copy was likely to receive an award, when the original idea was theirs. And also, the company that manufactured the copy had an existing relationship with the original manufacturer — in fact, they distributed the original product under the original name. Apparently, when they saw what a great idea it was, they copied it, rebranded it, and began selling their own competing version of it.

Legal? Yes, completely legal. Some would say, “That’s just business.”

And it is business — nothing illegal about it at all. It happens all the time in all kinds of businesses and industries. One manufacturer sees what another competing manufacturer is doing, understands that it’s a great idea, and they copy it and make it their own.

The reason I want to talk about this specific incident is because it happened not when a competing manufacturer copied what one company was doing, but when a trusted distributor copied what one of his clients was doing. It’s still not illegal. It’s still “just business.” But was it ethical?

Was there another approach that this distributor could have taken rather than simply copying his client’s great idea? How about contacting the client and offering them a deal that acknowledges and commends their idea and hopes to take that idea to the next level as a “team?” It’s not difficult to imagine the distributor coming to their client and saying something like, “We think we can manufacturer the product more efficiently and help you price it more competitively and we would be happy to team with you on taking the product to new markets.” Surely pricing could have been worked out in a way that compensated the originator for their terrific idea — a percentage of sales for example — and at the same time left enough profit to compensate the distributor for the value he brought to the team by reengineering the manufacture and ramping up the marketing. Collaboration is the very essence of ethics in this instance.

And what if the original manufacturer had said, “No thanks”? Could happen. Would the distributor then be free to pursue his effort to make the same mousetrap himself and sell it under his own brand? I think at that point he would, yes.

As an industry, we have our hands full wrestling with protecting our creative works, whether they are videos, photos, marital aids, toys, or other gear associated with adult fun and fantasy. It’s important for everyone in the industry to take a stand against theft and unlicensed distribution. And it’s also important for us to stand together against people who profit from the work of others in our industry, without actually creating that work themselves. The first step toward uniting is to treat one another with respect. If we continue to steal from one another, then we face a very long struggle against those from the outside who steal from us.

Ethics are important, both business ethics and personal ethics. Sometimes a choice we make may be entirely within the law, but it might not be the most ethical choice, even though it doesn’t expose us to legal liability. What do you think about all this? When is competition healthy for our industry, and when does it cross the line and become troublesome from an ethical point of view?

Peter Phinney runs Porn Guardian with business partner Dominic Ford. The company offers a full suite of anti-piracy services to the adult industry and currently represents more than 370 individual brands across all content niches.

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