AdultBizLaw.com - Fattorosi & Chisvin

From TMZ.com Video segment discussing Terri Hughes v. Playboy

From FoxNews.com - Video segment discussing Terri Hughes v. Playboy

From AVN.com Publish Date: 2005-09-21

Adult performer Carmen Hayes has filed a lawsuit in Los Angeles County Superior Court seeking unspecified damages against West Coast Productions through her attorneys, Fattorosi & Chisvin.

The lawsuit follows West Coast’s termination of her contract on August 15. The complaint alleges nine causes of action: Breach of Contract, Common Counts, Fraud, Intentional Interference with Prospective Advantage, Unfair Business Act or Practice, False Advertising, Commercial Misappropriation of Likeness, Unjust Enrichment, and Breach of Implied Covenant of Good Faith & Fair Dealing.

West Coast Productions executives were not immediately available for comment Wednesday.

According to Hayes, she was shocked by West Coast’s decision to terminate their contract just more than one month after its inception. Originally, she was excited to work with the company and wanted to develop her own style and brand of adult content.

Hayes said, “the only event that I was required to attend was a poker tournament in Pasadena at the Hilton for the AVN Adult Novelty Expo in July.”

The veteran of more than a 100 adult films was signed by WCP effective on July 1 as its only female contract performer.

By Mark Kernes from AVN.com Publish Date: 2008-01-12 10:01:00

LAS VEGAS – Is choking in adult videos illegal? Is it okay to show a bound person having sex? What can you show on a DVD cover? Is taking your adult website offshore a good idea?

These were some of the questions answered by the attorneys on the panel of the Adult Products Law Open Forum, and the audience of about 75 soaked it all in and asked for more.

Delivering the sometimes-gory legal details were four veteran attorneys: Allan Gelbard, who prevailed in both the Evil Angel piracy lawsuit and the JM Productions prosecution; Reed Lee, the constitutional expert from Chicago; Lawrence Walters, adult Internet expert and defender of free speech (not to mention webmistress Karen Fletcher); and Michael Fattorosi, the newest attorney on the adult scene but an established mainstream entertainment lawyer.

The answers to the choking/bondage questions turned out to be more complicated than a lay person would have guessed. Lee noted that all depictions of sexually explicit conduct carry the threat of obscenity charges, and he wasn’t about to try to tell any producer what he/she could or couldn’t shoot. He did mention the three-part Miller test for obscenity, which states that material which appeals to the prurient interest, is patently offensive and violates local community standards could be found obscene, if it didn’t have any literary, artistic, political or scientific value – and in fact, he suggested that anyone producing hardcore with choking or bondage might think about adding some of that scientific value; say, a discussion of the dangers of erotic asphyxia.

Walters brought up the problem of the “community standards” of the World Wide Web, noting that that issue still hasn’t been resolved, since the legendary COPA case, recently the subject of a trial in Philadelphia, is headed for the Supreme Court once again. However, he did say that it was a myth that it was illegal to depict sex and bondage in the same movie.

Fattorosi analogized the situation to the recent Brooke Ashley worker compensation case, where Ashley was declared an employee of the production company on whose set she allegedly contracted HIV (one of the parties is appealing that decision), and noted that if a performer were injured while engaged in a choking or bondage scene, a similar legal battle could be played out over that incident as well.

Most of the other answers weren’t quite as complicated as that one, but they did cover a fair amount of territory. Topics included what images can be depicted on a DVD cover (Answer: Whatever’s in the movie itself, bearing in mind local standards); whether a webmaster can be held liable for images on another website on the same server (Answer: No); whether an employee at an adult business charge sexual harassment (Answer: Yes, so it’s important to be professional in the workplace); whether offshore websites are a good idea to avoid an obscenity prosecution (Answer: They can be, if done properly); how hotels can provide adult pay-per-view while adult stores have been zoned out of the same area (Answer: Their business isn’t primarily the sale of adult products); how to keep potential investors from stealing your unique idea (Answer: You can try a non-disclosure agreement, but it might not work because chances are, your investor is much better capitalized than you are and better able to defend against your lawsuit); and several more.

One of the longer series of questions revolved around the recordkeeping and labeling law, 18 U.S.C. §2257, including what it is; who has the right to see records of your productions; and whether third-party recordkeepers are acceptable under the law.

The forum also covered the topic of the recent Occupational Health and Safety Administration (Cal-OSHA) raids on porn sets, with Fattorosi discussing the Brooke Ashley case in somewhat more detail (but without mentioning her name; something he’s forbidden to do by court rules). He noted that Cal-OSHA has mandated that producers put together a “blood-borne pathogens” avoidance program, and wants various sex acts to include the use of dental dams, goggles and condoms.

“It will make the industry very sterile if that happens,” Fattorosi predicted.

While it’s unclear is the Ashley case will become precedent, Fattorosi advised producers to buy worker compensation insurance when shooting sex, claiming that the premium would be easily affordable … and might save the production company many headaches later on if an injury occurred.

From AVN.com Publish Date: 2007-10-23 11:30:00

CANOGA PARK, Calif. – The Free Speech Coalition (FSC) has partnered with Lockton, the world’s largest privately held insurance brokerage, to provide FSC members with customized business and personal health insurance programs.

The partnership is designed to offer FSC member savings on health insurance, an innovative provider network, comprehensive market/carrier comparisons, benchmarking to communicate industry-related contributions and benefit plan designs, a dedicated account and service team, and personalized communication material for open enrollment and employee interaction.

“Lockton is ecstatic to be partnering with the Free Speech Coalition and its members,” said Alan Stearns, partner, Lockton Insurance Brokers. “As the largest privately-held insurance broker in the world, we are looking forward to providing creative, innovative, and cost-savings solutions to an industry that has been vastly underserved. The Free Speech Coalition leads the way to provide its members Fortune 500 services and large-scale buying power when purchasing insurance.”

Lockton will address the needs of all types and sizes of member companies, including the self-employed, in order to provide personalized service to FSC members. However, due to insurance industry restrictions that apply to trade associations in many states, FSC members can not be underwritten by various insurance carriers as part of a national group. Both FSC and Lockton will continue to explore options and work toward the eventual goal of having all FSC members underwritten as part of a single group through group insurance that may ease underwriting restrictions when that option can be made available to all members nationwide.

“The Free Speech Coalition is often viewed as a litigation-only organization,” said Scott L. Lowther, Director of Membership Services at the Free Speech Coalition. “While we do protect our members through major litigation efforts when necessary, FSC is committed to its broader role as the national trade association of the adult entertainment industry. A recent survey of our membership indicated that the number two issue facing adult businesses in all segments of the industry is a need for comprehensive, cost-effective healthcare options for business owners or their employees. This is second only to members’ desire to obtain low-cost options for 2257 record-keeping software which FSC introduced just weeks ago.

“Through this partnership, FSC hopes to address that need by offering high levels of experienced service through Lockton that is well positioned to meet a wide variety of members’ needs in all 50 states. We couldn’t be more pleased to make this ‘value added’ option available nationwide.”

FSC is giving a special thanks to Michael Fattorosi, Esq., for facilitating the introduction of FSC to Lockton through which the partnership was made possible.

For more information, go to www.freespeechcoalition.com.

From XBiz.com Wednesday, November 19, 2008

UNIVERSAL CITY, Calif. — Two industry leaders yesterday addressed a crowd of adult production company owners, directors, content producers, webmasters and other industry members at the Free Speech Coalition’s piracy summit at the Universal Sheraton.

The seminar that kicked off the afternoon’s presentations, “Thinking Outside the Box” featured panelists Steve Hirsch, founder and co-chairman of Vivid Entertainment, and Scott Coffman, founder and president of the Adult Entertainment Broadcast Network (AEBN). Sex.com news director and FSC board member Tom Hymes moderated the discussion.

Titled “How to Survive and Thrive in the Digital Environment … From the People Who Know,” the summit consisted of a series of five seminars, which addressed the topic of piracy in the digital age from both adult and mainstream angles.

Of much interest to the adult community was Hirsch and Coffman’s session. Leaders in both the video and web sectors respectively, both titans agreed on one thing right off the bat — piracy is irreparably harming their businesses and there is no magic bullet to stop it.

First addressing the magnitude of the problem, Hirsch said that piracy — illegal online content distribution, mostly done through tube sites — has gotten exponentially worse in the last year and a half.

Tube sites, along with torrent sites and other peer-to-peer file sharing methods, are ripping members areas and illegally copying scenes from DVDs for surfers to view for free. The ability to download “a la carte” as much adult content as your hard drive can hold ostensibly trains a whole generation of potential adult consumers to expect porn for free, much like Napster did for music.

“As a content producer that makes high-quality movies, how can I now sell something that is being given away for free?” Hirsch wondered. Already acknowledging troubling economic times and the precipitous across-the-board decline of physical media, piracy drives another stake through the heart of adult content producers who are battling deep drops in sales of their main revenue stream — DVDs.

Hirsch admitted that Vivid’s DVD sales were down 50 percent from the previous year and that video-on-demand only picks up a small portion — maybe 10 percent — of that loss.

Vivid, known for producing glossy, star-driven adult features is now faced with a new dilemma. “Declining revenue hampers our ability to produce quality content,” Hirsch said.

An inherent problem with adult content is the content itself. Coffman said that adult content is easier to steal and share on the Internet because since so much of it is gonzo, or scene-driven vignettes, surfers don’t have to wait to download a full-length movie like they would a Hollywood feature — all the need is a clip or scene to get off. Coffman said that most consumers don’t need to watch adult content in high-definition on a big-screen TV; adult content drove many people to watch video on the computer in the first place.

“We’re more like the record industry than like Hollywood,” Hirsch said. “They used to sell albums, now they sell songs. We used to sell movies, now we sell pay-per-minute.”

Adding a controversial wrinkle to the discussion was when moderator Hymes brought up the now-settled lawsuit between the panelists. Hirsch sued Coffman last December alleging that AEBN-owned tube site PornoTube.com was illegally hosting and sharing more than 30 excerpts from Vivid productions. Vivid dropped its lawsuit Oct. 20, which sought about $4.5 million in damages.

Coffman asserted that PornoTube.com’s business model has changed. The site no longer allows user uploaded content and only posts clips from approved content providers. The site also limits the length of the clips because as Coffman said “you can’t upsell if you give too much away.”

While the business relationship between Vivid and AEBN survived, Hirsch noted that most tube sites “don’t care about the industry like AEBN. It’s a business model based on theft. They say ‘How long can we keep this clip up until we get a letter ordering us to take it down?’”

Coffman said that if he launched PornoTube today it wouldn’t be successful because there already is too much competition, but he did have an idea on how to help combat piracy.

“You see all those ads on tube sites?” Coffman asked. “Well, don’t do business with them!”

Hirsch also had an idea. He said he was in talks with different software companies about developing a “fingerprinting” method to track his company’s content. Right now Vivid employs people to surf the Internet, track down illegally uploaded and shared Vivid content, and send a takedown notice. But that’s a game of “wack a mole,” the panelists said, because the content gets taken down, but then reappears on another site the next day.

“As content producers we have to protect and control our content,” Hirsch stated. “We’re all dealing with the same issue and we have to come together.”

Among those listening to Hirsch and Coffman speak were Wicked Pictures’ Steve Orenstein, Adam & Eve’s Bob Christian, X-Play’s Jeff Mullen, Evil Angel’s Christian Mann, Pure Play Media’s Richard Arnold, VCX’s David Sutton, Antigua Pictures’ Todd Blatt, Playboy’s Bob Johnson, Plaid Bag Media’s Peter Reynolds, directors Roy Karch and Mike Quasar, Evotum’s Mara Epstein, Falcon Photo’s Jason Tucker, ASACP’s Joan Irvine, Sparta Video’s Holly Ruprecht, publicists Wayne Hentai and Shari Beaumont, XBIZ’s Alec Helmy, and attorneys Clyde DeWitt, Paul Cambria, Greg Piccionelli, Al Gelbard and Michael Fattorosi.

From XBiz.com Tuesday, November 4, 2008

LOS ANGELES — The owner of TheEroticReview.com has been hit with a federal lawsuit, claiming he launched and profited from a website using photos and videos of an online adult model.

The copyright infringement case, filed at U.S. District Court in Los Angeles, not only makes cybersquatting claims but also includes charges of defamation and intentional infliction of emotional distress, because the defendant allegedly used the model’s real birth name in a domain name.

The online adult model, who also says she is engaged in an escort service and lives in Long Beach, Calif., is named as a Jane Doe in the suit.

She said she fears for her life because her home address was allegedly published on the site, which wasn’t disclosed in the suit.

David Elms, the owner of TheEroticReview.com, told XBIZ that on Tuesday he had yet been served with any court papers. The suit names Elms, as well as Elms Web Services Inc. of Torrance, Calif.

“I don’t know anything about a suit against me,” he told XBIZ.

The complaint alleges that “Elms directed his anger and vengeance at Doe because she refused to engage in sexual intercourse with him and because Doe refused to allow her name to be published on a website he controls.”

“Since Elms set out to intentionally harm Doe, she has had men locate her at her residence, her family has ceased communicating with her and she became very depressed, to the point of considering suicide,” the suit said.

Doe, who owns a members-only subscription website through her Kentucky-based company BFN LLC, said that she learned of Elms’ website that uses her real birth name and images of her in March.

The suit also said Elms reproduced that material on a mirror site, www.thetruthabout_____.com (which includes Doe’s fictitious escort name), and redirected it to the site with Doe’s real birth name.

Doe said in the suit that Elms also disseminated defamatory statements on the website, alleging that the adult entertainer “is … a coke addict” and that she doesn’t hold a PhD, which she claims in her own website.

Elms also is accused of sending a letter to Doe’s family and friends, informing them that she is a prostitute. As a result, she said, her immediate family has severed all ties with her.

“Elms embarked upon a crusade to ruin Doe’s life, in order to get back at her for her refusal to have sexual intercourse with him,” the suit said.

Doe, in the suit, is asking for a permanent injunction and actual, compensatory and punitive damages, as well as attorneys fees.

TheEroticReview.com hosts escort reviews, site reviews, discussion boards and live chat. Visitors rank their experiences with prostitutes on a scale of 1 to 10, as well as to leave comments. It reportedly gets 500,000 to 1 million uniques visitors each month.

Elms’ operation has been reported on by a number of mainstream outlets.

Elms, in an interview with MSNBC in 2006, said he started TheEroticReview in 1999 because he wanted to empower the customers of prostitutes.

The New York Times reported earlier this year that a deputy New York district attorney said Elms was criminally charged after a night in 2006 when police were called to a hotel where they found him with 3.8 grams of cocaine and a loaded semi-automatic weapon.

A prostitute was there and said Elms had forced her to perform oral sex at gunpoint, but there was not enough evidence to press charges on that accusation, the deputy district attorney told the Times.

Adult industry attorney Michael Fattorosi, who represents Doe in the suit, told XBIZ he could not comment on the pending case.

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From XBiz.com Friday, October 31, 2008

LOS ANGELES — A legal battle between two major adult stars over content streamed on the Internet has found its way to federal court, XBIZ has learned.

Both parties — Lexington Steele and Vanessa Blue — have filed federal lawsuits in recent months against each other over the ownership of numerous videos that first appeared under the Mercenary Pictures banner, where Steele acts as the company’s president and also is a performer.

Steele’s complaint claims that Blue, whose real name is Tanya Faulkner, appropriated copyrights illegally for various volumes of such Mercenary titles as “Black Reign,” “Superwhores,” “Ebony” and “Climax TV.”

Steele, whose real name is Clifton Britt Jr., claims that Blue was a salaried performer and, at time of employment, “never objected or asserted rights to the copyrighted registrations solely owned by Mercenary Pictures.” Blue also goes by the name of Domina X.

Steele alleges that Blue, along with her production company VBX, provided scenes from the videos he owns on VanessaBlue.com and earned membership fees over the video-on-demand clips.

His suit seeks compensatory, as well as punitive damages, along with injunctive relief.

Blue’s separate complaint alleges copyright infringement and breach of an implied contract, among other charges, against Steele, Mercenary and Canada-based HVL Cyberweb Solutions Inc., which allegedly entered into a web distribution deal with Mercenary through its Braincash division.

Blue, in the complaint, said that it was Steele who fraudulently filed for certificates of registration over the titles and that Steele’s company agreed to pay her 75 percent of the gross revenue generated from LexSteele.com.

That promise, Blue contends, was made if she relocated her residence from Las Vegas to Los Angeles, which she eventually did.

So far, Blue claims, Steele and his company made at least one payment but breached its contract starting in June 2006.

Blue, in her suit, asks for compensatory damages and enhanced damages over the alleged copyright infringement.

Both cases are wending their way through U.S. District Court in Los Angeles, with Blue’s case against Steele slated next year for jury trial on May 12.

Attorney Michael Fattorosi, who represents Blue, told XBIZ he could not comment on a case that is currently in the midst of litigation.

Attorney Robert Esensten, who represents Steele, did not respond for comment.

From XBiz.com Sunday, October 26, 2008

LOS ANGELES — The Devinn Lane court case has become a hot topic among webmasters on adult online forums.

As previously reported in XBIZ, Lane is currently suing adult studios Vivid, Digital Playground and other major producers for trademark violation.

The suit alleges that several companies purchased domain name variants of her trademarked name, resulting in infringement of trademark, trademark dilution and cybersquatting, according to the suit.

The suit has drawn the interest of adult webmasters. A recent thread on popular webmaster board Oprano.com features a lively discussion of the suit’s finer points.

Among the contributors to the thread is Lane’s attorney, Michael Fattorosi.

“Since I am the attorney on this one, I can assure you that all of the replies have been wrong so far …” Fattorosi added to the thread. “Devinn was a contract star for Wicked. There are no signed releases for DP or Vivid. She has her name trademarked and it is now a famous mark. You guys are really missing the bigger story here,” Fattorosi continued.

At the heart of the suit lies the issue of trademark. Lane accuses the studios of trying to benefit from her name and identity. Some webmasters posting to the board believe that her previous performances and identity were part of her contract

Fattorosi had no comment for XBIZ, but he did clarify his client’s case further on the Oprano thread by stating, “Here’s what most people need to understand: just because you guys shoot a girl does not give you unfettered rights to her name,” Fattorosi continued.

“This is a rather common misperception. There are literally hundreds of names being squatted on, or in a best-case scenario for me, infringed upon. With a MR, you can use her name — trademarked or not — after the top-level domain name, i.e., devinnlanexxx.com is not legal, but www.pornstars.com/devinnlane.htm is perfectly acceptable. Even if Wicked did resell content to Vivid or Digital Playground, which I cant imagine they would do, those rights will not include trademark rights. She owns her trademark.”

From XBiz.com Monday, October 20, 2008

LOS ANGELES — Former adult star Devinn Lane filed suit last week against numerous blue-chip adult entertainment and digital media companies, alleging they profited from domain names similar to her performer name.

The suit, filed at U.S. District Court in Los Angeles, charges that Vivid Entertainment Group, Digital Playground, Domains by Proxy, Dotster and Moniker Online Services, among others, made use of her performer name in domain names such as DevinnLaneXXX.com, Devinn-Lane.com and DevinnLaneCash.com, among others, without compensation.

Lane, whose real name is Cherilyn McCarver, alleges that in some of the cases the companies conspired with each other to divert traffic to adult websites that they own.

Lane said that Arizona-based Domains by Proxy registered DevinnLaneXXX.com more than three years ago without Lane’s consent. Two years later, Lane said she discovered that the site redirected to www.kim1.vivid.com, a website owned by Vivid.

In January, the suit claims, the site stopped redirecting to that site and became a parked page that is owned by Delaware-based Dotster. A month later, the parked page started redirecting to DigitalPlayground.com, which lasted only one month, after which it became another parked page, which it continues today.

The complaint also targets the owner of DevinnLaneCash.com, which allegedly is owned by Privacy Protect, and Devinn-Lane.org and DevinnLane.org, which allegedly are owned by Florida-based Moniker. It also targets Pixel, a Hawaii company, which allegedly owns Devinn-Lane.com.

“Plaintiffs are informed and believe that defendants are using [Lane’s trademark] deliberately and intentionally in order to drive consumers to the infringing sites and other websites and to capture and trade on the goodwill and notoriety of the [trademark],” the suit said.

Attorney Michael Fattorosi, who represents Lane, would not disclose to XBIZ additional details of the suit; however, the filing said that Lane filed and was awarded a trademark to her name in 2002.

Lane has performed in more than 70 films since her debut in 1999. She also has directed about 17 videos, including five volumes of adult-themed “The Devinn Lane Show,” and has produced two adult films.

In addition, Lane was a Wicked contract star and has hosted shows on Playboy TV and has been featured in softcore adult films for Cinemax, as well as a mainstream movie, “The Girl Next Door.”

XBIZ was unable to receive comment on the complaint from Vivid officials at post time; Digital Playground officials were out of the country and unavailable for comment.

With the trademark infringement and cybersquatting charges, Lane is asking for injunctions over the use of the domain names and actual damages that include potential treble damages, as well as attorneys fees.