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Porn Co. Vivid Not Afraid of Being Punk'd by Ashton Kutcher

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By Tanya Roth, Esq. on December 08, 2010 8:50 AM

If any law professors are looking for an entertaining way to explain the law of right of publicity to their students, have we got an idea for them. Movie actor Ashton Kutcher has sent a cease and desist letter to the always well-behaved porn company, Vivid Entertainment, to attempt to stop them from using his name to sell a sex tape. Unlike many other celebrity sex tape scandals, this one has a nice bright line:

Kutcher isn't even in the video.

Tabloid reports have gone on for ages now alleging an affair between Kutcher and someone called Brittney Jones. No stretch is too great for good marketing, so according to E!Online, Vivid is selling a "very explicit, uninhibited" sex tape featuring Miss Jones and an ex-boyfriend. Here is the reach for the connection: "Ashton's fans will undoubtedly enjoy seeing what the star himself may have experienced, in this exclusive video." 

It's like hearsay evidence, but with sex.

Kutcher and attorneys have utilized the cease and desist letter as the first step in enjoining Vivid from making money off his "good name," reports E!. The letter states the porn company is attempting to "misappropriate and convert the potential economic value in Mr. Kutcher's identity." Enter the right of publicity.

In California, home of movie stars, politicians, and those who are both, the law allows for an individual to protect themselves from the unauthorized commercial use of their name, likeness or identity. However, this right is always balanced with the First Amendment protection for the free discussion of public issues such as news stories published about celebrities like Mr. Kutcher. 

Whether or not Ashton Kutcher cheated on his wife (actress Demi Moore) may be a reasonable topic of public interest or discussion. But the fact that someone he may or may not have slept with is on tape having sex with someone else is going to be a bed too far. Translation: not legal.

Further reporting by E! says that Brittney too has a cease and desist letter out to Vivid Entertainment. They say they are looking forward to a meeting with her. Ashton Kutcher, not so much.

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