Imagine a parent who wants to take their child to a local Ben and Jerry’s ice cream shop. A quick internet search reveals a wide range of flavors: “Chocolate Fudge Brownie”, “Chunky Monkey”, “Chubby Hubby” and “Boston Cream Thighs”. That last one isn’t a Ben and Jerry’s flavor; it’s not an ice cream flavor at all actually. “Boston Cream Thighs” is really the name of an X-rated pornographic video, one in a series of pornographic videos parodying the ice cream franchise.
This isn’t the first time the porn industry has taken a popular culture icon and degraded it. The porn industry has often created sometimes very creative rifts on cultural icons, including “Star Wars”, “Spiderman”, the “Simpsons” and many others. This time though, the pornography producers may have overplayed their hand.
In 2012, Ben and Jerry’s Ice Cream brought a lawsuit against Rodox Distributors, the California-based company distributing the pornographic DVDs, for trademark infringement. The suit concluded in the District Court of Southern New York when Judge Kaplan approved a consent injunction to destroy all materials used to make the DVDs, to cease marketing the DVDs, and to recall all the movies sold.
The case reopens an old legal question: is porn free speech? Precedent provides a somewhat amusing answer. Although the United States Supreme Court has ruled in Miller v. California (1973) that pornography is not an expression of free speech, the high court ruled in the same case that the material might be protected if an average person could find some value in the work as a whole. The porn industry quickly took its cue and began incorporating elements which could “bring value” to the “art”. Tactics to make pornographic films constitutionally legal ranged from having a person in the background reciting Shakespeare during the film to creating bizarre parodies of popular and well-known movies. The parodies had an interesting dual effect: creating parodies gave the porn industry both Constitutional protection and trademark protection, as parodies are often an exception to intellectual property laws.
Why then, did the trademark exception fail Rodox Distributors? The Ben and Jerry’s parodies Rodox marketed did not count as parodies under the legal definition of parody. Although the movies parodied Ben and Jerry’s logo, name and products, the pornography was simply using the ice cream franchise to promote its own product. Parodies are suppose to make a point about the subject they are making fun of, but Rodox was simply using the parody as a quick way to advertise their films. Other pornographic parodies, in comparison, made use not only of the names of cultural icons, but also had a plot to mirror the original works. “Boston Cream Thighs” has no such redeeming value. According to Ben and Jerry’s, this trademark infringement for the sake of advertising was hurting Ben and Jerry’s reputation and business.
The argument that the porn industry is harming the ice cream company’s reputation is an odd one to anyone who ever entered a Ben and Jerry’s shop. Ben and Jerry’s appears to have entered the case with unclean hands: a legal doctrine on hypocrisy. The company regularly creates flavors which are often controversial. “Hubby Hubby”, for example, was released in 2009 to celebrate the legalization of same sex marriage in Vermont, Ben and Jerry’s home state. Another example is the flavor “Schweddy Balls”, which sounds like one of the DVD titles the ice cream company is fighting against. “Schweddy Balls”, however, is actually a flavor sold at Ben and Jerry’s! It sounds more than hypocritical for the ice cream chain to protest the damage Rodox Distributors is doing to its reputation when the American Family Association was assailing Ben and Jerry’s for the same public relations disaster just last year in 2011!
For the American Family Association and others against pornography, this might seem like a significant victory as the injunction approved by Judge Kaplan is the most sweeping one against the porn industry (with the exception of the ban on child pornography). Ironically, and perhaps bitterly, though, Ben and Jerry’s has succeeded in shutting down a portion of the porn industry for the same reason the porn industry films young women engaging in sexual activities: money. This victory for anti-pornography came about not because of morality but business. It seems that in America the dollar speaks louder then everything else. As a result, both free speech and moral decency loses.