HOLLYWOOD—One might think, what with the plethora of adult parodies of mainstream TV shows and movies that have been released over the past few years, and with the U.S. Supreme Court's decision in Hustler Magazine v. Falwell, that the idea of using a mainstream figure in a sexually-oriented parody was well-protected. Will Ryder certainly did... until he got a cease-and-desist letter from an attorney claiming to represent the rightsholder to all uses of "The Three Stooges," even though, as Ryder's attorney Michael Fattorosi pointed out, the only currently-existing registered trademark for "The Three Stooges" is for bottled beer.
First, a little background. Way back in 1983, Hustler magazine ran a parody of a Campari liquor ad, using Campari's established format of having a celebrity Campari drinker talk about the celeb's "first time" drinking Campari—a none-too-subtle sexual allusion—except in the Hustler parody, the alleged drinker was fundamentalist evangelist Rev. Jerry Falwell, and his alleged "first time" was having had sex with his mother in an outhouse while both were "drunk off our God-fearing asses on Campari." Falwell may have been particularly peeved at the parody Falwell's claim that, "I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?"
Of course, Falwell sued Hustler, and the case made it all the way up to the U.S. Supreme Court, which in 1988 ruled 8-0 (Justice Anthony Kennedy sat that one out) that Falwell's claims of libel, invasion of privacy and intentional infliction of emotional distress could not stand against Hustler's First Amendment right to parody both the Campari ad and Falwell himself.
"The [Fourth Circuit] Court of Appeals interpreted the jury's finding to be that the ad parody 'was not reasonably believable,' and in accordance with our custom we accept this finding," Chief Justice William Rehnquist wrote in the conclusion of the court's opinion. "Respondent is thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional distress by 'outrageous' conduct. But for reasons heretofore stated this claim cannot, consistently with the First Amendment, form a basis for the award of damages when the conduct in question is the publication of a caricature such as the ad parody involved here."
Fast-forward 24 years to March 26, 2012, when Will Ryder Productions received a letter from Robert N. Benjamin, attorney for C3 Entertainment, which according to Benjamin "is the owner of all intellectual property pertaining to The Three Stooges® Brand and the characters known as The Three Stooges comedy team." Seems C3 was upset that Ryder's production company "is producing a pornographic movie using The Three Stooges Trademark and other proprietary material belonging to C3," and on behalf of C3, Benjamin is demanding that Ryder "cease and desist such infringement immediately."
This wouldn't be the first time an adult company has heard from a mainstream attorney regarding an adult parody. For instance, Wicked Pictures had extensive negotiations with Richard O'Brien, the owner of the rights to all of the music used in The Rocky Horror Picture Show, which director Brad Armstrong wanted to parody, and while the company managed to work out O'Brien's dispute, Armstrong's back-up plan was to release his parody without music, and each time the performers were tempted to burst into song, have Randy Spears' Riff-Raff character stop them, saying, "We're not allowed to do that."
On the other hand, it's also known that the creators of and performers in several mainstream TV shows and movies that have been porn-parodied have embraced the send-ups by, in the case of HBO's True Blood, star Anna Paquin giving out copies of New Sensations' parody to her fellow cast members, and in the case of Fox TV's American Dad, doing an in-house screening for the animators of Jordan Septo's live-action take on the comedy.
With all that in mind, Ryder's attorney Michael W. Fattorosi replied to Benjamin that, "After review of my client's production tapes, I can assure you that his movie falls squarely within the definition of parody and is therefore not infringing on any of your client's intellectual property or the rights contained therein. Any attempt to chill my client's protected free speech will be met with an anti-SLAPP motion," referring to a motion opposing the type of lawsuit that some corporations or individuals file in order to censor, intimidate or silence a (in this case) movie producer by forcing him to spend time and money defending a lawsuit that the plaintiff actually never expects to win. Hence that lawsuit's legal name and acronym: "strategic lawsuit against public participation" or "SLAPP."
But for whatever reason, Benjamin wasn't about to take Fattorosi's assurances at face value, though his response was more bluster than enlightenment.
"You claim on behalf of your client, Will Ryder Productions, that the low budget, clearly pornographic, film your client intends to sell by infringing upon The Three Stooges® Brand is protected by the First Amendment to the U.S. Constitution as a 'parody.' Such a claim of parody has no merit," Benjamin wrote, citing a California Appeals Court case he'd won, Comedy III Productions v. Saderup.
Fattorosi, aware of the Hustler case as well as the Constitution's and the courts' protections for parody, responded to Benjamin by pointing out that another California Appeals Court case, Roxbury Entertainment v. Penthouse Media Group, and a successor case, Rogers v. Grimaldi, were more on point.
In Roxbury, plaintiff owned the rights to the '60s television series Route 66 and related intellectual property, including the "Route 66" brand. However, in about April of 2008, Penthouse released its own hardcore movie titled Route 66, clearly referring to the famous road that crosses almost the entire United States. The movie, directed by Kelly Holland, was also clearly a sexually explicit one with no references to Roxbury's TV series or that series' characters. Penthouse won on summary judgment, with the appeals court ruling relying heavily on a previous case, E.S.S. Entertainment 2000 v. Rock Star Videos, which stated that, "defendant video game creator's modification of plaintiff strip club's trademark was 'not explicitly misleading and is thus protected by the First Amendment'[,]" and that therefore, the Lanham Act, which prohibits trademark infringement, trademark dilution and false advertising, didn't apply.
In other words, Fattorosi was saying, nobody in his/her right mind is going to mistake Ryder's Not The Three Stooges XXX hardcore parody for anything to do with The Three Stooges characters or trademarks that C3 may own the rights to (though as Fattorosi points out in his letter, C3's trademark registration application for The Three Stooges brand is still pending in the U.S. Patent and Trademark Office.)
Fattorosi himself cites E.S.S. Entertainment 2000 and another case, Mattel v. MCA Records, which involved Mattel's Barbie doll toy, as more on point than Comedy III Productions, then concludes, "We request that you carefully review the cited cases and carefully consider your promised course of action. Any attempt by your client to restrict my client’s protected First Amendment rights will be met with swift opposition by way of a motion under California Code of Civil Procedure Section 425.16, and if necessary a Motion for Summary Judgment in the Central District. My client will also be seeking all the requisite attorneys’ fees and costs incurred to defend what is obviously a meritless lawsuit by C3 Entertainment, Inc in light of the current case law. Please govern your actions accordingly."
Both Ryder and Fattorosi suspect that C3's threatened lawsuit may have less to do with an alleged trademark violation than with the fact that the Farrelly Brothers' The Three Stooges comedy, starring Will & Grace's Sean Hayes and Mad TV's Will Sasso, is opening nationwide tomorrow, Friday the 13th, and that if a lawsuit were filed, its intent would be mainly to draw attention to that movie—which Ryder saw in a preview screening and says is "pretty good."
"Obviously, there's a lot of attention right now because of the movie 20th Century Fox is releasing this week," Ryder told AVN. "The advertisements are everywhere, and I think it will do very, very well for them."
And of course, to make absolutely sure no one will mistake the one comedy for Ryder's own very different take, the DVD packaging will include the statement, "Not the Three Stooges XXX is a parody! 'The Three Stooges' is a trademark of C3 Entertainment. Columbia Pictures, Twentieth Century Fox, C3, their producers, writers or assignees are in no way affiliated with this parody. The trademarks featured or referred to within Not the Three Stooges XXX are property of the trademark holders. These trademarks holders are not affiliated with Will Ryder Productions & do not authorize, sponsor or endorse the Not the Three Stooges XXX parody."
"We don't intend to lose anything," Ryder stated. "Obviously, we have legal precedents; we have a great leg to stand on, but ironically, I was thinking that even though parody's been around for a long time, we're the ones that brought it back and redesigned it so that it looks more like the actual product—the movie, the TV show, whatever it happens to be—and now everybody else has jumped on the bandwagon. And I was thinking, wouldn't it be funny if I was the guy that brought it back with Brittney Rears and The Brady Bunch and I was also the guy who lost it. If we lost this lawsuit, which I don't think we'll do, it would basically set the precedent and end parody in porn, so I'd be a footnote to history because I'd be the guy that brought it back and the guy who fucking ended it."
But Ryder's dark musings not withstanding, even a cursory look at Not The Three Stooges XXX shows the clear differences between it and any mainstream Three Stooges comedy. Most obviously, it features five hardcore sex scenes, shown in "living color" (though the rest of the movie is in black and white), including a 10-person orgy, and even the plot is something Moe and "Curly" Howard and Larry Fine never tackled: The boys (Anthony Rosano, Evan Stone, James Bartholet) have to find jobs or their girlfriends won't fuck them anymore. In fact, if anything, the original Three Stooges comedies went out of their way to avoid even subtle intimations of sex, thus making them ripe for just the type of satire Ryder specializes in.
Check back with AVN later for any developments in this important First Amendment controversy.
Not The Three Stooges XXX from Will Ryder Productions can be ordered from Pulse Distribution. Email Robert Plarski, Executive VP of Sales, or call 818-435-1605.