In the fight for royalties, recording artists and their labels must sometimes fight dirty, grasping at anything they can get. Illegal downloading cases are being settled, but now Warner and other major labels are stepping into the dimly-lit back rooms, taking their fight to the reality porn industry.

Warner, Electra, Atlantic, and other major players are filing copyright infringement lawsuits against RK Netmedia (a.k.a. Reality Kings), a reality porn website, for using songs by Michael Jackson, Katy Perry and Justin Timberlake without permission to soundtrack their online porn videos.

Reality Kings employs adult dancers or actors to lip-synch or dance to a copyrighted song. Now we all must know, exotic dancers have been doing their thing to copyrighted songs ever since they put jukeboxes in strip clubs. The modern problem encountered here is that these dances (and songs) are being filmed and uploaded to the Reality Kings' website, where they can be seen for a fee. RK Netmedia is, therefore, making money off their videos which, of course, include some use of the aforementioned copyrighted songs.

The music industry is reportedly seeking the maximum penalty of $150,000 per violation. Lawyers for the music industry respond that Reality Kings' use of copyrighted songs is "deliberate and calculated". Reality Kings counter that their explicit and unauthorized use of the songs falls under the tenuous umbrella of "fair use."

The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

In determining whether the use made of a work in any particular case is a “fair use,” four factors must be considered:
1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

In August 2008 U.S. District Judge Jeremy Fogel of San Jose, California ruled that copyright holders cannot order a deletion of an online file without determining whether that posting reflected "fair use" of the copyrighted material. The case involved Stephanie Lenz, who made a home video of her 13-month-old son dancing to Prince's song "Let's Go Crazy", and posted the video on YouTube. Four months later, Universal Music, the owner of the copyright to the song, ordered YouTube to remove the video enforcing the Digital Millennium Copyright Act. Lenz notified YouTube immediately that her video was within the scope of fair use, and demanded that it be restored. YouTube complied. Lenz then sued Universal Music in California for her legal costs, claiming the music company had acted in bad faith by ordering removal of a video that represented fair-use of the song.

Warner and the other labels are hoping that RK Netmedia will be found to have exceeded these laws of "fair use" and to have infringed on a copyright.

On a lighter note: this could lead to a new niche market for song writers. The porn industry could commission new songs, buy the rights, and have them tailored specifically to their videos’ themes. But we're sure that the RIAA or another authority will take issue to that somehow.