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'Three Stooges' Porn Parody Prompts Legal War of Words

The owner of the Stooges is taking on the makers of an adult film titled 'Not the Three Stooges XXX'.

Three Stooges By Pool - H 2012
TM and © 2012 Twentieth Century Fox Film Corporation

C3 Entertainment, the company that has managed the Three Stooges brand for more than a half-century, is trading barbs with the makers of a porn film called Not the Three Stooges XXX. C3 alleges its intellectual property is being infringed. The producer of the porno insists his film is protected by the First Amendment as a parody. Now, a new dimension has popped up.

On Wednesday, Robert Benjamin, executive vp and general counsel of C3, threatened his adversary's attorney for leaking correspondence to the gossip outlet TMZ, writing in a letter: "I learned yesterday that someone, presumably you or your client, gave copies of recent correspondence between us to the media. By publishing your letter to me, dated April 11, 2012, in such a manner, someone may have incurred tort liability. Your letter contains misstatements of fact and disparages The Three Stooges Brand."

If this dispute hits a courtroom, it soitenly would be one to watch.

So-called porn parodies have flourished in recent years. Vivid Entertainment, the adult entertainment giant, has a whole line of superhero porn parodies, including Batman XXX: A Porn Parody and Superman XXX: A Porn Parody. Meanwhile producer-director Will Ryder claimed on his blog last year to have "reinvented the porn parody" genre with Not the Bradys XXX. Ryder is now the guy on the defensive over his Stooges adult film.

PHOTOS: Behind the Scenes of 'The Three Stooges'

In the other corner is Benjamin at C3, a company originally set up as Comedy III Productions in 1958 by the Stooges themselves after they departed Columbia Pictures. In legal circles, this company is most famous for winning a landmark 2001 decision at a California appeals court, Comedy III Productions, Inc. v. Gary Saderup, in a battle with an artist who sold lithographs and T-shirts bearing the faces of the Three Stooges. The case upheld the constitutionality of celebrities’ rights of publicity and often is cited when famous people go to court to protect their names, faces and likenesses.

Up until now, pretty much all of the porn parodies have been given a pass from legal trouble. The producers seem to have artfully crafted their titles to make it as explicit as possible that they are doing "parody" and that there can be no confusion of the films' sources of origin. Thus, the word "Not" in the title.

A challenge seems overdue, and for more than two weeks, attorneys have been exchanging letters in the Stooges dispute, debating where the law stands.

After a cease-and-desist letter was sent, and after the response came back that the adult film was protected as parody, Benjamin hit back in a letter sent April 5. "Your client is not the first to try to use the First Amendment as an excuse to wrongfully capitalize on The Three Stooges Brand," he wrote, pointing to the above-mentioned 2001 decision.

On April 11, Michael Fattorosi, an attorney for Ryder, responded. "While your case is noteworthy in regards to copyright and misappropriation of likeness, I see no application to a true parody, which my client has indeed created," he wrote.

Fattorosi went on to say that C3's only registered trademark for "The Three Stooges" was for bottled beer and that his client's film would never be mistaken by a consumer for such; he pointed to the case Roxbury Entertainment v. Penthouse Media Group, where a court addressed the relationship between the First Amendment and the Lanham Act and defenses where there's artistic relevancy and no explicit misleading as to the source and content of work. There are other cases where porn films have been deemed creative endeavors or where the nominative use of a trademark in a parody trumps the right of the owners of the mark.

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On Wednesday, Benjamin responded to that letter, disputing that C3's only trademark is for beer. He said it also covers a variety of goods including books, posters, motion picture exhibition and gaming machines.

But perhaps just as important, Benjamin notes that his intellectual property includes copyright and rights of publicity and also hints that a lawsuit might not just be grounded in the usual trademark claim of confusing the source of goods and services.

C3 theoretically could bring a copyright lawsuit, arguing that the porn film isn't really a parody and is substantially similar in expression to other Stooges works, including the Farrelly brothers film now in theaters. Such a claim would be tough, however, because proving substantial similarity is a high bar. C3 also could allege that the porn film misappropriates the likeness of the famous Stooges, similar to the way the company once went after the lithographer. Courts have protected parody from publicity rights claims in cases like Winter v. DC Comics, but the rules of the road in this area of law are very gray and fact-dependent.

But in mentioning the porn film, and alluding to the TMZ leak, as something that "disparages The Three Stooges Brand," C3 also seems to suggest that it could bring a lawsuit for tarnishing and diluting its trademark. This is an area of law that seems to be heating up at the moment, including in Louis Vuitton's ongoing lawsuit against Warner Bros. over a handbag mentioned in The Hangover Part II.

Nobody should be surprised to see a case filed soon that argues that the Not the Three Stooges XXX destroys the commercial value of the Stooges marks because consumers will associate the lack of quality in the porn film with the plaintiff's intellectual property.

The porn parody genre has grown up and been reinvented, but its legal legitimacy has yet to be fully tested. That soon could change with the slap of a lawsuit.

E-mail: eriq.gardner@thr.com

Twitter: @eriqgardner