The legal secrets of sex tapes

Kendra Wilkinson says she doesn't want her private porno to be public. Does she have a choice?

Topics: Pornography, Broadsheet, Sex, Love and Sex,

The legal secrets of sex tapes

Kendra Wilkinson expects the leak of her private sex tape to be “really hard” — “probably the hardest time” of her life. That might seem surprising from a woman who has already posed naked in the pages of Playboy and co-dated Hugh Hefner with two other women. Such a woman is expected to gamely catch the wave of publicity and ride it out to her own benefit. It’s what she’s been working toward all along, right?

The 24-year-old new mom sees things differently: “People are going to judge me and stuff, and I just hope to God that nobody looks at me like a porn star,” she says in a preview of the season finale of her E! reality TV show. “I really hope that people actually have the heart to understand the situation because it’s obvious I have a kid and a husband now.” She added: “That was me, but that’s not me now.”

Wilkinson has hired a lawyer to fight the video’s release and sent a “cease and desist” letter to Vivid Entertainment, the company distributing “Kendra Exposed,” reading: “The video is private and highly confidential taken for private use and not for public disclosure. Any exploitation of the video would be a gross violation of Miss Wilkinson’s constitutional and common law rights of privacy.” Regardless, the tape was released online and on DVD Wednesday, and the porn giant isn’t concerned about any legal ramifications. Vivid CEO Steven Hirsch told Salon: “All paperwork and footage has been vetted, and our attorneys gave us the green light to move ahead.”

Why so confident? Just take a look at the legal precedent. Celebrities can go after the company shilling the tape by claiming a violation of privacy or copyright infringement, but most of these cases end in a settlement. Paris Hilton threw loads of dough toward litigation, only to settle after securing rights to the tape’s profits. Pamela Anderson, the other queen of leaked sex tapes, settled her suit over a video shot with ex-boyfriend Bret Michaels after a payout and an agreement that the tape would be destroyed. However, she and ex-husband Tommy Lee won $740,000 each in a copyright infringement suit over their infamous “honeymoon” video, which was stolen from their home — but only after five years of litigation. In Wilkinson’s case, the tape was sold to Vivid by her ex-boyfriend Justin Frye; as her costar and the man behind the X-rated camerawork, he has a pretty plausible claim to ownership of the video. (Radar has reported that Wilkinson inked a secret deal to profit from the video’s sales, but Hirsch denies the claim.)

Vivid has been down this road before: Kim Kardashian sued the company in 2007 over the distribution of her sex tape with then-boyfriend Ray J. In a settlement, Vivid agreed to pay Kardashian nearly $5 million to drop the lawsuit. Presumably, it was worth the 5 mill — especially at a time when porn producers are desperate for any gimmick that will convince people to actually, you know, pay for their porn. You better believe the same is true with “Kendra Exposed,” which has already hit a record high with its pre-sales, according to TMZ. The fact that it is a private video made public without the star’s consent is a huge part of the appeal: Vivid’s special website for Kardashian’s sex tape boasts that “it was supposed to stay private” and calls it “the tape they tried to hide!” There’s even a photo of Kardashian next to a mocking speech bubble reading: “I can’t believe this tape showed up on the internet. OMG!” As if the message weren’t clear enough, underneath it reads: “PWNED.”

Stars can litigate all they want, but the simple truth is that once a private sex tape hits the Web, it lives online forevermore. In Wilkinson’s case, stills have already made the blog rounds, and even relatively mainstream sites like the Huffington Post have linked to the hardcore preview of the film. Famed entertainment lawyer Marty Singer, who works for the law firm representing Wilkinson, says his best piece of advice for avoiding a sex tape scandal is: “Don’t make one!”

Tracy Clark-Flory

Tracy Clark-Flory is a staff writer at Salon. Follow @tracyclarkflory on Twitter and Facebook.

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