Record industry tries to catch porn industry with pants down

 By Eriq Gardner

The music industry, which has struggled financially in recent years, may be aroused at the prospect of winning money from the porn industry.

Warner Bros. and a number of other record labels filed a lawsuit last week alleging copyright infringement on the part of an adult entertainment company whose porn videos allegedly featured such spectacles as actors lip-synching to Justin Timberlake's "Sexyback" while engaging in sexual acts on camera. 

The defendant in the legal action is a Florida-based company, RK Netmedia, whose websites include realitykings.com and inthevip.com.

Damages claimed on the alleged nasty use of copyrighted music could run in the tens of millions of dollars.

According to the complaint, Reality Kings describes itself as the "World's Best Reality Porn Website."

The defendant specializes in a particular brand of adult entertainment where adult "actors" perform sexual acts at exclusive night clubs and private parties.

The record labels say there's virtually no dialogue in these videos — who needs plot these days? — and instead, popular recordings from artists like Timberlake, Michael Jackson and Katy Perry provide the "soundtrack" accompaniment to the lustful on-screen action. Videos are allegedly named after songs, and actors are encouraged to lip-sync to the lyrics. (Imagine Perry's "I Kissed A Girl" or Michael Jackson's "Don't Stop (Til You Get Enough)" as a lip-dubbed porn.)

Marc Randazza, the attorney for RK, says he plans to argue that the defendants' use of music is "fair use" in this context. 

"If you're going to film in a live night club, you're going to absorb some of the ambient sounds," he says. "You are going to hear what the DJ is playing, and if someone can tell me how to shoot at a nightclub and police out the music in the background, I'm all ears."

Randazza adds that RK respects intellectual property but would never make a claim against a reality TV show producer whose actors were shown watching RK porn.

The plaintiffs contend that the use of music was "deliberate and calculated." They are seeking maximum statutory penalties in the amount of $150,000 per claimed infringement.  The complaint lists hundreds of examples of alleged infringements. 

Doing due diligence on the matter for the plaintiffs was David Steinberg and Marc Mayer at Mitchell Silberberg & Knupp. We imagine they had no trouble finding lawyers at the firm to research the case.