While the COVID-19 era has caused serious economic pain for many, especially in porn production, some good news in the realm of legal developments can offer a bit of light in the darkness.
Backtracking to about a year ago, in June 2019, the United States Supreme Court axed the law that for decades prevented “scandalous and immoral” trademarks from being registered. The plaintiff in Iancu v. Brunetti was denied registration of the mark FUCT for clothing, and eventually won on First Amendment grounds in the highest court in the land. This opened the floodgates for others to register adult-oriented trademarks. Trademark registrations in the United States provide vast benefits, and adult industry companies were frequently denied them. This was completely unfair in a country where we are guaranteed freedom of speech and expression. That win was huge, paving the way for more wins this year and heralding the dawn of a new era.
We still don’t know exactly what to expect in the coming months, but as an industry, we are making huge strides.
Stepping away from trademarks for a very special and important moment, January 2020 brought even more hope. On January 24, the challenge to FOSTA, the Allow States and Victims to Fight Online Sex Trafficking Act, was revived. The lawsuit had previously been dismissed by the district court based on a ruling that the Woodhull Freedom Foundation and other plaintiffs did not have standing to bring the suit. The government had alleged that the plaintiffs basically didn’t have enough of a stake in the matter to bring the lawsuit. On appeal, however, the lower court’s decision was reversed. The suit is now thankfully moving forward.
From there, in late February, the new era for trademark law established last year continued to blossom because of a ruling from the Court of Justice of the European Union (CJEU) resulting in a similar outcome to the Brunetti decision. In that case, the trademark Fack Ju Göhte was initially denied registration on grounds that it was allegedly against public policy or morality. The English translation of the German trademark is “Fuck you, Goethe.” After making its way up through the court system, the denial was finally reversed to allow registration of the mark. Boom!
Then, COVID-19 hit the west, and much of the United States and Europe completely shut down their economies in March. In the U.S., as part of the CARES Act, a Paycheck Protection Program was implemented to provide funds to businesses to help keep their employees paid during the hard times. The application and policies appeared to exclude “prurient” businesses from eligibility for receiving the funds from the Small Business Administration, the administrator of the program. Lawsuits were filed by many adult nightclubs, and positive outcomes for those plaintiffs, like Little Darlings in Michigan, abounded, offering another step forward.
In addition, in May, a government shift in focus to COVID-19 helped to kill the state bill AB 2389 in California, home of much of the professional porn industry. This bill, if it had passed into law, would have required fingerprinting, background checking and licensing of sex workers. While many professions require such measures, sex work is different; it’s an unfairly stigmatized business, which means that this kind of tracking would be a “forever stamp” for those who submitted to it. They would never be able to escape from it if they ever wanted to. There is no guarantee that a bill mirroring this will not be reintroduced next session, but in the meantime, for now, it’s gone. Poof!
So, while COVID-19 has made this year feel like it’s straight out of a sci-fi thriller, many of us remain less than thrilled. We still don’t know exactly what to expect in the coming months, but as an industry, we are making huge strides. It’s going to be okay. Yes, changes will keep happening in order to deal with the pandemic, but the business of porn and pleasure products will continue to flourish and bring happiness to the world … a world that desperately needs it right now.
Disclaimer: The content of this article constitutes general information, and is not legal advice. If you would like legal advice from Maxine Lynn, an attorney-client relationship must be formed by signing a letter of engagement with her law firm. To inquire, visit www.Sextech.Lawyer.
Maxine Lynn is an intellectual property (IP) attorney with the law firm of Keohane & D’Alessandro, PLLC. She focuses her practice on prosecution of patents for sex technology, trademarks for adult business brands and copyrights for porn and other creative materials. Through her company, Unzipped Media, Inc., she publishes the Unzipped: Sex, Tech & the Law blog and the Sex Tech Patent IndeXXX bulletin at SexTechLaw.com.
