Reflecting on Recent Legal Wins for Adult

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This article was originally published in the July 2020 issue of Xbiz World and on Xbiz.com.

While the COVID-19 era has caused serious economic pain for many, especially in porn production, there is some good news in the realm of legal developments that can offer a bit of light in the darkness.

Backtracking to about a year ago in June of 2019, the United States Supreme Court axed the law that for decades prevented “scandalous and immoral” trademarks from being registered. This was huge, and paved the way for more wins this year. See, 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. See, 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 literally the dawn of a new era…

Stepping away from trademarks for a very special and important moment, January of 2020 brought even more hope. On January 24, the challenge to the “Allow States and Victims to Fight Online Sex Trafficking Act” (FOSTA) was revived. The lawsuit had been previously 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 stake in the game to bring the lawsuit; on appeal, though, 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 German to English translation of the mark means, “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 the funds by 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 enable the “killing of the bill” of AB2389 in California, the home of much of the professional porn industry. This bill, if it had passed into law, would have required finger printing, background checking and licensing of sex workers. On its face, many professions require this, but 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, and 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 re-introduced 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 are much 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 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.

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