Last week, Ben & Jerry’s went to court to quash “Ben & Cherry’s”—a series of “exploitative, hardcore pornographic films” inspired by the company’s iconic pints. Ben & Jerry’s is apparently not amused that in Caballero Video’s capable hands, its trademarked flavor “New York Super Fudge Chunk” begat a porn titled “New York Super Fat & Chunky.”
Lawyers for Ben & Jerry’s (and its parent company, Unilever) argue that the films could cause “confusion, mistake or deception” among consumers, who might believe that the Vermont ice cream makers actually endorse the activities contained in the film “Boston Cream Thigh.” (Caballero was apparently convinced by the lawsuit—it agreed to pull the series from shelves, and destroy them).
I’m more confused about the fact that the porn industry now needs assistance from the dessert aisle in order to convince people to view hardcore sexual material. Then again, consumers have yet to figure out how to download ice cream into their hard drives for free, and it is online piracy’s stifling effect on the porn industry that can be blamed for “Peanut Butter D Cup.” Whenever I talk business with porn producers, they tell me that now more than ever, there is a huge emphasis within the industry on providing “novelty” in every new video release—or at least the illusion of it. Producers rarely satisfy this imperative by innovating within the actual filmed sexual content, however. Often, a sheen of newness is achieved through packaging and marketing. The porn parody boom over the past decade is one quick fix—just take a popular show (or a not-so-popular one; the “WKRP in Cincinnati” parody exists), dress up porn performers like the leads, then have them shed their clothes and cycle through the same suite of stock sexual positions you’d find in any mainstream porn title.
Last year, I sat in on the filming of one of these quick-and-dirty sendups: “Zorro XXX,” a porn parody loosely based on Robert Rodriguez’ 1998 film “The Mask of Zorro.” This wasn’t a parody in the traditional sense of the term—it provided neither hard-hitting commentary nor (intentional) laughs. It did offer a 50-year-old white dude in a blouse with a summer stock Shakespearean accent, groaning sadly in a fake cave built into a Valley warehouse while a 20-year-old woman dutifully fellated him. (As it turns out, blowjob technique has not much changed since the Spanish colonial era.)
That’s a lot of work to get people to watch oral sex—it is an impressively, elaborately lazy strategy. But at least Zorro provides a story on which a person reasonably could construct a fantasy. “Ben & Cherry’s” is just a food you probably recognize, and that tenuous association may be what ultimately spelled its doom. One trademark law publication notes that in order to cinch First Amendment parody protection, “a work must not simply use a mark to call attention to itself, but must use it in order to comment on, criticize or ridicule the mark itself or its owner.”
I haven’t seen the “Ben & Cherry’s” series, but it’s unlikely that the films are crafted around tightly-wound narratives skewering the ice cream industry; they’re not so much parodies as they are porn-plus-puns. Some of the titles don’t even make business sense. So tight is the XXX parody’s stranglehold, Caballero resorted to marketing a film around a sexual position it claims not to feature: “Everything But The … Butt.”
