Raoul Duke posts on www.xxxporntalk.com: Lost in the general scrum this week was the first of a weekly series of posts by XPT’s own Moxie analyzing Kira Kenner’s Lawsuit against Vivid Video. The posts can be seen on Luke Is Back or on Moxie’s Blog. Most insightful.
Quote: I’ve been looking over Kira Kenner’s lawsuit against Vivid for a while and I’m a surprised that there hasn’t been much written about it. I’m going to be giving my take on what the case is really about and what I think it means to the adult industry. This week I am going to focus on the allegations and what they mean and next week I will focus on the evidence which supports and contradicts the allegations. Any performer thinking of entering a contract really ought to pay close attention and studios even closer.
The adult industry has gotten away with murder against its performers for too long primarily because the talent is too young, naive and powerless to do anything about it. The legislature and regulatory agency’s are notoriously slow to force any reforms and have nothing to gain by doing so. Perfect scenario for the courts to get involved, no? The talent consisting of girls barely out of high school is not exactly going to retain, well, me.
When I first looked at Kira Kenner’s lawsuit against Vivid I commented to Luke Ford that I didn’t think much of it based on the damages. I still think that’s the case. According to her attorney, Kira was making $5500 a film and she made only 45 movies from 1999 to 2004. Vivid’s attorneys acknowledge that she only made $300,000.00 over that 5 year period. That’s an average of $60,000.00 a year. Not the type of cash to keep you flush in real estate and Louis V. purses with little dogs.
And what did Kira give up for that $60,000.00 a year?
She just signed away her life. Literally. Keeping in mind that we are just dealing with allegations, Vivid obtained the right to market Kira Kenner products from posters to condoms. Vivid retained the right to terminate Kira’s contract to perform at any time. Not unusual. What is unusual is that Vivid retained the right to sell Kira Kenner products in perpetuity, forever. Kira would never see a penny from those products; she only gets paid for her movies. So theoretically, Kira could have made one film, had her contract terminated and still Vivid could market products based on her trademark in perpetuity.
Why would anyone agree to that sort of contract? Fear of a prolapsed rectum perhaps. Thus Kira is trying to break this contract and basically get royalties and a share of marketing. She’s trying to get from the court what she never could have gotten in a negotiation.
In order to break the contract Kira has claimed she was retaliated against for complaints about sanitary issues on the set. Yeah, I know you’ve been patiently waiting to hear about the dildo.
Director Paul Thomas allegedly required her to perform with a previously used “marital aid”, yeah, a dildo, as well as perform with an unidentified male performer who “looked gnarly down there.” Shockingly, Kira developed an STD, which she claims she got on the set. When she complained to Mary Hirsch, she was fired in retaliation. Or so she claims.
This is where Kira loses me. She claims damages of $1M for lost earnings. The first problem is that she was making $5500 a film and made an average of 9 films a year. So it would have taken her 20 years to make $1M. The second problem is that Kira essentially stopped working after her termination. Thus she failed to mitigate her damages. Really no explanation for her failure to continue working.
People who have been reading my posts on XPT know that I am highly skeptical about the value of single girl websites. Apparently Vivid realizes this too and was willing to share the “profits” 50-50. Do you think that after thoroughly fleecing its performers that Vivid would be so charitable if they thought Kira-Kenner.com was worth anything? So what explains Kira’s claim that she is owed $5M in website profitsWell, perhaps Kira believes she is not only owed for her website, but for her contributions to Vivids website. Sounds like marketing royalties to me.
The royalties meme seems to come up again in Kira’s claims that Vivid breached her trademark by continuing to market products in her name after the termination of her contract. Kira claims she’s owed $10M under this claim. Its pretty clear that she signed a contract that bargained away these rights. So she is depending on the court to find the contract so unconscionable that it should be judicially rewritten.
There is a saying that bad facts make bad law. That means that when courts see grossly unconscionable imbalances of negotiating power, they tend to do things about it and they tend to go too far.
The thing that really interests me about this case is that Kira Kenner was able to retain a heavy hitter like Marty Singer. Marty doesn’t have to win this case. He can use it to find the weak spot and get a preview of Vivid’s defense. Then he can come back with Brianna Banks or Jenna or Tera, ect, ect, ect. Sob story after sob story until he gets what he wants, royalties, back wages, rights regarding merchandizing. At that point Vivid will probably be a division of JM Pictures.
If the religious right wanted to put an end to porn, they would see to it that every performer in Porn Valley had a lawyer like Marty Singer or David Boies. Next thing you know there would be two or three studios left and talent would have health care, 401k’s and ….who am I kidding, the religious right could never be that smart.
The courts could always enforce the contract and leave the status quo. But with attorneys like Marty Singer getting involved, its clear that with big money comes big lawyers. Will Kira & Marty be porns Curt Flood and Marvin Miller? Stay tuned.
Next week we examine the evidence.