LAS VEGAS - On Friday, Arrow Productions filed a lawsuit against VCX, Inc., charging that the company has infringed on both common-law and registered trademarks on its film Deep Throat as well as on the name "Linda Lovelace," and that VCX's use of the marks has led to dilution of the marks and to "confusion ... as to the affiliation, connection, or association with Plaintiff, and as to the origin, sponsorship and approval of Defendants' goods, services and commercial activities by Plaintiff" in violation of the Lanham Act.
"We know that VCX has a position that they think the copyright is in public domain because they have a print that has no copyright notice on it, which back in the day you had to have; no longer true after 1989," explained Clyde DeWitt, who represents Arrow. "But since my client's predecessor retained control over the film - they kept the prints in their possession; it wasn't public exhibition, because they didn't run them through the theater distributors; they basically rented the theater and brought their own print in - we think we have a strong case."
"Therefore," the complaint claims, "the theatrical exhibition of the motion picture by Plaintiff did not constitute 'publication' under the Copyright Act... The first time that Plaintiff voluntarily relinquished control of any copy of the Deep Throat® Motion Picture was on videotape, and those videotapes all included copyright notices."
"When video came along, they [Arrow] did put a copyright notice on it and did register it," DeWitt said, "and the part about which I haven't heard anything from VCX in terms of why they think they can do what they're doing - selling Deep Throat; making disks from their own masters - is the trademark. Now, you can't trademark the title of a movie, but you can trademark the title of a series of movies, and as you know, 'Deep Throat' is a series. There's a list of them in the complaint."
The Arrow complaint claims that "Deep Throat" is a "common-law mark under Nevada law, a registered mark under Nevada law ... and a mark registered with the United States patent and Trademark Office," although the registration didn't take place until 2004. Arrow also claims ownership of a trademark for "Linda Lovelace," noting that the actress from the original Deep Throat, Linda Susan Boreman, only played that character in two of the 16 identified Deep Throat movies. Arrow therefore trademarked the name "Linda Lovelace" in 2008 without opposition.
"In sum," the complaint says, "Plaintiff owns the copyright on the Deep Throat® Motion Picture and the trademark rights to the Deep Throat® Mark and the Linda Lovelace(TM) Mark."
But David Sutton, CEO and owner of VCX, disputes DeWitt's assessment regarding the public domain status, and has called the lawsuit a form of retaliation that has its origin several years ago.
"In a nutshell, they [Arrow] initially started putting out our properties Debbie Does Dallas on DVD sometime around 2004 and followed that up with Devil In Miss Jones on DVD," Sutton told AVN, "and they continued without abatement despite my father's request to Pistol that he stop, because his argument was groundless, and that was basically that they had 'mob provenance' for those titles."
Legally, "provenance" means the origin, or the source, of something, or the history of the ownership or location of an object, and there's no doubt that Arrow Film & Video was the owner and creator of Deep Throat. But works of sexual art have always had an uneasy relationship with the law, and it is only in recent years that courts have been willing to recognize copyright claims by adult producers. This lack of access to judicial remedies led, in the early days of adult film - and even moreso in the video era - to widespread piracy since a property's ownership could not necessarily be legally established, although as adult video has become more accepted in mainstream society, more and more companies are copyrighting their works and even registering trademarks on certain types of intellectual property.
"My father initially tried to persuade Ray [Pistol, Arrow's owner] to quit selling Debbie and Devil, and this was toward the end of my dad's life, so he was not that authoritative a figure, at 80-plus years old, and was having pretty severe illnesses," Sutton said. "He passed away in December, 2006, and basically, I took over the dealing with Ray Pistol, so I tried to convince Ray of his misdeeds and he pretty much refused to do anything. At one point, he actually agreed to stop doing Devil In Miss Jones, said he made a mistake on Devil In Miss Jones, but he's not going to stop on Debbie Does Dallas, and basically, the veiled threat we gave was, 'I'll do the same thing to you; I don't want to do it because there's few people in this industry that have a louder voice as far as the piracy issue is concerned,' and I said I'd hate to do it, but we were, in the late '60s and throughout the '70s and into the '80s a mob-associated business - I don't say 'we'; I had nothing to do with it - and that's basically it. So finally, in the end my veiled threat became an active one. I said, 'I apparently cannot convince you based on just intelligent argument to stop duping me, so I am going to dupe you,' and I told him this in a telephone conversation in early 2008, and he told me that would be a big mistake. So I actually thought that the threat would be more of an instigator than anything else, and it wasn't; it didn't do anything. I decided in June of 2008 that we were going to do this."
So Sutton, who had a print of Deep Throat, had it digitized in widescreen format and created package art to go along with it, and sent it out for replication in July of 2008.
"I informed them that my master was in replication, everything was being printed, but that I'd give him one last chance to stop me by doing the right thing and stopping pirating my two properties," Sutton claimed. "I couldn't actually talk to Ray Pistol; he was never available, so they gave me the number of the Interlandis; I spoke to Robert [Interlandi, an Arrow employee] on several occasions telling him of the futile nature of their continuing to just ignore my threats, because they were going to come to fruition very shortly. So I had all my stuff at the printer and replicator during the Storerotica show in August of 2008, and I approached the Arrow exhibit there. I approached Paul and Robert [Interlandi]; Robert left immediately and I spoke with Paul and I told him I intended to release my version of Deep Throat within a couple of weeks, that I did not wish to do so, and that if Ray Pistol would converse with me and we could come to an agreement whereby he would ship me all of his pirated Debbies and Devils and I would ship all of the Deep Throats to him as soon as they came in, we would make an agreement that they would never effect another pirated version of either of those titles and I would do the same with Deep Throat, and we'd both go back to where we were several years ago. That was pretty much ignored."
Sutton claims he still hopes he can settle the dispute with Arrow without going to trial, in part because he's afraid of what will happen if he (Sutton) wins.
"If I get away with putting out Deep Throat because of an ambiguity in the copyright status of the film," Sutton told AVN, "what it does in effect is throw the title into the public domain, and I do not wish to do that... The only outcome of this if it continues is a judge officially declaring Deep Throat in the public domain, and I don't think any of us wants to see that happen."
DeWitt, however, believes VCX would continue to have a problem selling the movie even if the suit ended as Sutton fears.
"Even if the movie were in public domain, they could sell it, but they couldn't use the title; we've trademarked that. They'd have to call it something else, and that would eat into their sales considerably, I would assume," DeWitt analyzed. "But it's a pretty valuable trademark. Arrow's licensed it to other companies, like the energy drink and the play."
Indeed, Arrow's lawsuit seeks more than $1 million in damages or "an amount to be proven at trial," and a permanent injunction against VCX selling copies of the movie.
At press time, Sutton had not officially been served with a copy of the lawsuit, so it may be many months before the status of VCX's sales of Deep Throat is resolved.
