Moxie, an attorney, blogs on MySpace about the lawsuit:
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.
Moxie isn’t seeing the bigger picture with this lawsuit. Yes, the Artist’s Agreement defines the monetary compensation that Ms. Kener would receive for performance in the videos and movies, but Ms. Kener was also compensated for appearances on behalf of Vivid to promote Vivid’s products. Certainly the largest portion of the lawsuit would be the website revenues. While Moxie has long held the opinion that these sites do not generate much money, and the artist/performer’s share is relatively small, what is really going on with this lawsuit is an attempt to obtain a fair accounting of the website revenues, which Vivid did not do. Through the issuance of misleading revenue statements and arcane and obscure accounting methods, Vivid appears to have seriously underreported the amounts of money being taken in by the various Kira Kener websites. Vivid probably withheld moneys taken in by affiliate websites, to which Ms. Kener would be entitled. There was a settlement agreement between Ms. Kener and Vivid regarding the accounting of website revenues from inception through mid-2002, but if Vivid was withholding information about the revenues or misleading Ms. Kener about the amounts taken in by the websites, then that settlement agreement could be void pursuant to California’s Civil Code section 1542, which states that a party does not waive the right to seek compensation for claims about which he or she did not know at the time he or she entered into the settlement agreement, and about which, if he or she had known, it would have materially affected his or her decision to settle on those terms.
Also, Vivid continued to run websites using URL addresses which they promised to turn over to Ms. Kener as recently as autumn of 2006, long after the relationship between Vivid and Ms. Kener ended, and for which Vivid simply dumped potential fans/members of a Kira Kener website into a general “Vivid” website.
Also at issue is Vivid’s theft of personal photographs of Ms. Kener’s, which Vivid agreed to return to her at the conclusion of their business relationship. Instead, Vivid continued to use those photographs in violation of not only the agreement reached, but in violation of Ms. Kener’s right of publicity under California law.
Ms. Kener also trademarked her name, which makes Vivid’s ongoing licensure of her name and likeness to other companies for products actionable conduct.
Moxie points out that the Artist’s Agreement gave Vivid the right to use Ms. Kener’s name and likeness “in perpetuity.” However, several factors tend to contradict this assessment. For example, when Vivid decided to produce a Vivid comic book/graphic novel, they went ahead and started to do so with Ms. Kener’s name and likeness, and after production had already begun, and a cover had been painted, Vivid approached Ms. Kener and offered her a small sum for the right to use her name and likeness in the book. When Ms. Kener balked at this, Vivid pulled her from the cover and from the book. If they had the perpetual right to use her name and likeness, why did they pull her from the book? Vivid also separately compensated Ms. Kener when they produced a door-sized poster of Ms. Kener, and she received separate compensation for the use of her name and likeness in the publication of a book of sex tips from Vivid contract girls.
Also, as many women in the business will tell you, their primary income is derived from feature dancing and selling product on the road during appearances. Ms. Kener is booked through the Lee Network, which has always had strong ties to Vivid Entertainment and Steven Hirsch. Shortly after this dispute began, Ms. Kener’s bookings through the Lee Network dropped off drastically. The word, “blackball” comes to mind. It’s surprising, really, considering how many people over the past two years have asked Ms. Kener when she will be featuring in their town; the audience is obviously there, yet it appears that the Lee Network is more interested in placating Mr. Hirsch’s ego than in making money.
The long and short of it is that Vivid certainly did not deal fairly with Ms. Kener, a point on which I think Moxie and I can agree. Obviously, Mr. Singer took on the case because he believed that Ms. Kener’s claims were worth a significant amount of money, and I suspect a trial of this case could potentially “blow the lid off” of the shady practices of Vivid. While Mr. Hirsch wants to put his company in the limelight with controversial “celebrity” videos like Kim Kardashian’s sex tape and now the sex tape of a former American Idol contestant, he would certainly not want his misuse of contract performers with significantly less bargaining power to be brought to light.
Nice post Kira.
I’m just somebody who believes Kira’s case clearly has merit, Leslie, I’m not Kira herself.
There’s no way anybody can know so many details of that story unless you’re Kira or…Marty Singer but I’m sure he got better thing to do then posting here.
Or somebody else who is privy to all of these details, Leslie. Maybe somebody who’s been hearing the details of the case from someone with first hand knowledge of everything that happened leading up to the lawsuit.
LawMan,
I’m sure alot of what you have said is true and appreciate the added insight which will assit me in reporting on this case. One thing I have to correct you on is that I don’t have any opinions on what the case is about yet. My initial post was limited to what Kira and Vivid indicated in their initial pleadings that the case was about.
Maybe…or somebody posting on her behalf,which would be just the same as it was her.Sine you won’t identify yourself,it’s up to the readers to decide if you’re . ….
Moxie, your correction is unwarranted, as the only place where I mentioned you having an opinion is in the area of website revenues, where you yourself have previously stated that you don’t believe that websites generate that much money (‘skeptical” was your term). However, you did offer opinions throughout the piece, in that you evaluated the pleadings and drew conclusions without thinking further into the facts of the case. You claim that Ms. Kener failed to mitigate her damages. She is not required, in her pleadings, to allege that she has undertaken all efforts to mitigate her damages. Further, imagine if you will the reaction of several adult film production houses to a lawsuit that strikes at the core of their dealings with “talent.” Do you think that the major companies are going to want to hire the performer that files that lawsuit? Or are they going to take a “wait and see” approach? The only performer I know of who became involved in litigation with a big company was Tera Patrick, and that one resolved when Vivid stepped in and essentially bought out her contract with Digital Playground.
As for Leslie’s comments that I am “posting on somebody’s behalf,” I will say the last word on the issue that Kira does not find out about my posts until she reads them here on lukeisback.com, like everybody else. All I will say is that I’ve been a lawyer in California for the past eighteen years.
Now…everything is history…Amen!