While I don't blame DC Comics for avoiding the issue entirely when the topic first raided the internets, my question was not why, but how? How exactly was it legal for a company like Vivid to take the image of a recognizable, copywritten character and essentially profit from the brand without getting slapped by Warner Brothers with a lawsuit? We caught up with Vivid and asked their public relations representative a few questions regarding the legality of the film.
Comicvine: Can Vivid legally use the DC/WB trademarked name "Batman" in the title of the new movie in question? If so, how/why is this possible?
VIVID ENTERTAINMENT: In a long line of case law, courts have routinely held that use of a title, such as the one at issue in Batman XXX: a Porn Parody, to be acceptable as long as the title has artistic relevance to the underlying work and it does not explicitly mislead the consumer as to the source or content of the work.
No reasonable person would be misled about whether DC Comics is the sponsor of Vivid’s xxx parody movie.
I can agree that since the term "parody" is utilized in the title of the film, it would be difficult for any "reasonable" individual to be misled that this film is anything other than a farce comedy of the classic Adam West Batman series; but making assumptions about what a reasonable person would think? Tsk tsk. Additionally there is the issue of the term "superhero's" and the legality of it's use by Vivid. The term is shared jointly by Marvel and DC Comics. According to Vivid's press release, however, the word is being used to describe a new genre of adult movies which will be released by Vivid. So how can Vivid legally use the word "Superhero"? After reading their explanation, I am still unsure.
Comicvine: According to Vivid's press release you cited the formation of "Vivid-Superhero." Aren't the rights over the term "superhero" jointly owned by DC and Marvel Comics?
Vivid Entertainment: The "Vivid Superhero" or “Vivid SuperXXXhero” imprint is being used to identify the movie Batman XXX: a Porn Parody along with several different planned parody movies.
The term “parody” may be described as when one artist, for comic effect or social commentary, closely imitates the style of another artist and in so doing creates a new artwork that makes ridiculous or comments on the style and expression of the original.
Batman XXX: a Porn Parody and the parody movies planned by Vivid are and will be transformative (different from the original), and do not and will not adversely impact the commercial value of the original work as they operate in completely different markets
No reasonable viewer would mistake the original series “Batman” as anything other than the target of a parody.
So essentially, they claim that they are protected in utilizing the term Superhero as a parody as well based on it being a parody. I will give it up to Vivid Entertainment for being creative, though. Realizing that the film market is being flooded with superhero films, and that these characters are extremely profitable, they found a way to capitalize on some extremely profitable brands. With the adult film industry on a rapid decline since audiences realized they could stream smut free of charge, it seems that Vivid has found a way to make some porn profit. To read more about the decline of the adult film industry, check out this breakdown from Forbes.
What do you guys think? Are you okay with seeing your favorite heroes in adult films? Should the adult film industry be allowed to capitalize on brands like Batman?
