From Rolling Stone.com
By Daniel Kreps
Since online video exploded with the arrival of YouTube in 2005, the music industry has fought to make sure artists and labels are compensated for tracks used in web clips. Major labels have withheld and in some cases muted their music videos on YouTube in an attempt to negotiate higher royalty rates, and cracked down on unauthorized "lip dubs" on Vimeo. Now, the music industry has filed a lawsuit against a new foe: porn purveyors RK Netmedia, or Reality Kings, the self-proclaimed "World’s Best Reality Porn Website."
According to The Hollywood Reporter’s THR, Esq. blog, Warner Music and several other labels have filed copyright infringement lawsuits against RK Netmedia for using songs by Michael Jackson, Katy Perry and Justin Timberlake without permission to soundtrack their online porn videos.
The lawsuit alleges that Reality Kings hires adult "actors" to perform sexual acts at nightclubs and private parties where the music industry’s property is heard without permission. In some videos, the "actors" allegedly lip-synch with the song or conduct sexual acts that link thematically with the track (for example, Katy Perry’s "I Kissed A Girl"). The music industry is reportedly seeking the maximum penalty of $150,000 per violation.
Reality Kings counter that their explicit and unauthorized use of the songs falls under the tenuous umbrella of "fair use." "If you’re going to film in a live night club, you’re going to absorb some of the ambient sounds. You are going to hear what the DJ is playing, and if someone can tell me how to shoot at a nightclub and police out the music in the background, I’m all ears," Reality Kings attorney Marc Randazza tells THR. Lawyers for the music industry respond that Reality Kings’ use of copyrighted songs is "deliberate and calculated."
As Rolling Stone previously reported, the question of fair use — in a much more PG setting — was the focus of a recent lawsuit filed by Don Henley against California Republican senatorial candidate Chuck DeVore, who wrote and recorded altered versions of the rocker’s songs without permission for a pair of YouTube campaign videos. DeVore argued that his "Hope of November" and "All She Wants to Do is Tax" — altered versions of "Boys of Summer" and "All She Wants to Do Is Dance," respectively — were parodies protected by "fair use" laws. Ultimately, a judge decided that the campaign songs were not "parodies" since they didn’t actually criticize Henley’s music and instead poked fun at the Obama administration. In that case, the defendant was found to have exceeded the laws of "fair use" and infringed on a copyright, something the music industry hopes will be the end result when they take on the porn industry.