LOS ANGELES—Award-winning performer Flower Tucci has just suffered a setback in her lawsuit to regain the right to use the domain trademark flowertucci.com from internet distributor LLL Advertising and RK Netmedia, which puts out adult DVDs and web content under the name "Reality Kings."
"[F]our defendants are Florida citizens, and Florida would be a more convenient forum for three other defendants who are citizens of Delaware, Poland and the Netherlands," wrote U.S. District Judge Margaret M. Morrow in an Order dated Oct. 8. "Nonetheless, because it would be a burden for plaintiff to litigate in that jurisdiction, however, this factor would generally be neutral. Given the fact that both contracts plaintiff executed contained forum selection provisions requiring that disputes be resolved in Florida, however, the court finds that the factor favors transfer."
Tucci had sued LLL and RK, as well as several other individuals and companies, in U.S. District Court in California on April 15, 2009, claiming that she had been tricked into signing a model release and an exclusive performance agreement which gave LLL the exclusive right to Tucci's services as an adult performer, as well as the "perpetual but not exclusive" right to use her name, likeness and biography to advertise LLL's products, plus the rights to flowertucci.com, also "in perpetuity." For all of this, Tucci was to be paid $130,000 per year—which Tucci admitted was twice the industry standard for such an agreement—as well as a $5,000 signing bonus... and a necklace.
But then Tucci performed some scenes for Elegant Angel—scenes for which she said she had received verbal permission from LLL—and LLL deemed that a contract violation, canceling the remainder of the contract but retaining the rights to flowertucci.com, which led to the current lawsuit. Tucci is being represented by adult entertainment attorney Michael Fattorosi.
"She sued my clients for contributory trademark infringement," stated Allan Gelbard, attorney for LLL and RK, "which is a pretty interesting theory, considering that it says in the brief that she licensed my client to use her trademarks in perpetuity. Now, people have a freedom to contract, and in some situations, assigning rights in perpetuity might be an issue, but in a situation like this where my client goes out and buys a URL from a cybersquatter in reliance on her saying, 'Yeah, it's yours; go do it and I'll work for you'—they had to buy it from a cybersquatter, and she knew it at the time. In fact, she approved it at the time."
Indeed, the Order notes that LLL paid Aligned Acquisitions, the alleged "cybersquatter," $10,087.75 for Tucci's domain name.
"So they sued us here," Gelbard recounted, "and I filed a brief saying, 'Wait a minute; you can't sue us here. You've got two contracts that says binding arbitration in Florida,' and their response was, it's all unconscionable, because the way you break these types of contracts is by claiming they're unconscionable. That's a nice way of saying it was so one-sided that you're not going to enforce it; that you took advantage of the other party."
However, Judge Morrow's Order transferring the case to the Southern District of Florida paints a different picture. It notes that by the plaintiff's own admission, she was represented in the contract negotiations by well-known adult talent agent Mark Speigler, and that even though Tucci is not a high school graduate, she "had been an adult-entertainment performer for more than five years at the time she entered into negotiations with LLL. ... The negotiations were sufficiently extended, moreover, that [Tucci] could have sought legal counsel had she wished to do so. Further, the fact that LLL paid [Tucci] 'two times the industry standard for an agreement of this type' undermines any suggestion that she lacked bargaining power in the transaction." The court also noted that Tucci admitted to most of those facts in her own pleadings.
"She tried to claim there was fraud and all that stuff, but it was crap," Gelbard opined. "She got herself a good deal; it didn't go well for her; she got caught breaching the agreement and she got fired, and now she wants her domain back, but it doesn't work that way. She ran a big smear campaign when she first filed this thing, but it's going back to Florida. There's no trademark infringement. The judge has hinted there's no way they're going to win their case. We're going back for a binding arbitration and we're going to get our attorney fees out of it."
No date has yet been set for the arbitration, and Tucci may yet appeal Judge Morrow's Order.
UPDATE: Subsequent to this article's posting, Flower Tucci contacted AVN, enclosing a copy of her high school diploma, thereby contradicting Judge Morrow's statement that Tucci had claimed in her court filings that she was not.
Tucci also argues that her contract salary of $130,000 per year was in fact below industry standards because "most contract girls get 5K a [month] because they only shoot a few movies. I was shooting HARDCORE ANAL GROUP SCENES TWICE A WEEK! If you do the math that is 1.2K to 1.5K x2 a week so 8x a [month]. I was actually paid under the industry standard."
While it is unclear from what source Tucci gets her information that other contract players earn $5,000 per month and only make one movie per month for that amount, her own monthly salary under the contract would have been just over $10,800, or roughly $1,350 per scene for eight scenes per month. Again, although Judge Morrow states in her opinion that Tucci admitted that her salary was twice the industry standard, this statement by the judge would also appear to be in error.