LAS VEGAS—For anyone who thinks 35-year-old adult movies can't (or shouldn't) generate the heat that's coming from the Arrow v. VCX lawsuit, we've got two words: Mickey Mouse. The Disney Corporation has spent tens of millions of dollars defending their exclusive right to make creations with that big-eared rodent, including untold contributions to federal legislators to guarantee passage of the Sonny Bono Copyright Term Extension Act of 1998, which added another 20 years (for a total of 95 years) to the date Mickey should fall (but probably won't) into the public domain.
And when you're talking about franchises in the adult world, there are probably none bigger than Deep Throat and The Devil in Miss Jones, both of which are now the subject of Arrow's First Amended Complaint.
As AVN reported in April, Arrow Productions, the successor to Arrow Film & Video (AFV), sued VCX, Inc. for alleged infringements of both its copyright to the movie Deep Throat, which AFV produced back in 1971, as well as its common-law and registered trademarks for the name "Deep Throat" and the name of its star "Linda Lovelace" (real name: Linda Susan Boreman).
However, subsequent developments have caused Arrow to file an amended complaint, possibly in part in response to a claim by VCX owner David Sutton that his company owned the rights to The Devil in Miss Jones ["Devil"]. However, a rumored countersuit by VCX against Arrow, claiming that Arrow had violated VCX's rights by releasing DVDs of Devil and Debbie Does Dallas, has not yet materialized, though it is reportedly still under consideration—and Arrow's attorney, Clyde DeWitt, thinks he knows why.
"There was a case a few years ago where somebody sued VCX for copyright infringement, claiming that they were infringing Devil in Miss Jones," DeWitt explained. "And what happened was, VCX defended by saying, 'No, Devil in Miss Jones is in public domain because it was distributed with no copyright notice before the Berne Convention Implementation Act in 1989.'
"Arrow wasn't a party to that litigation," DeWitt continued. "So what VCX alleged in court was that it was distributed without the notice and therefore it's in the public domain. Now, there was a guy, I think his name was Bocious, who testified in that trial that the Perainos [who owned AFV] gave Pierre Productions, which produced Devil in Miss Jones, a whole sack of money for the copyright to Devil in Miss Jones."
"Because Arrow wasn't a party to that, there's two things that are significant: one of which is that money changed hands over the ownership of the movie, and the other is, the judge in the case sort of said, 'Well, it doesn't make any difference; it kind of looks like Arrow probably owns it, but nobody owns it because it's in public domain, so it doesn't matter who owns it.'
"So we started investigating," DeWitt explained, "and it seemed like since Devil in Miss Jones had almost the same facts as Deep Throat, that was what generated the amendment to the complaint. We figured, since we're going to fight this out, let's fight it all out. The facts are pretty much the same."
Arrow's copyright and trademark claims regarding both movies are largely based on the movies' unique exhibition system.
"What Arrow did with Devil was the same thing it did with Deep Throat, because Deep Throat and Devil in Miss Jones ran together in the same theaters for years," DeWitt recounted. "What happened was that, yeah, it was exhibited without a copyright notice under two sets of circumstances. Set one was when Arrow 'four-walled' it; I mean, basically, they'd say, 'Okay, we're going to rent your theater, lease your employees, sell the tickets; we get the money and we pay you rental for the theater.' Now, because Arrow was, in effect, showing the movie in its 'own' theater, it was never 'publicly exhibited' without the copyright notice. And that never got mentioned in court because they didn't know about it.
"And the other, of course, was the pirated showings," he continued. "We suspect that the same lab that was striking prints of both of these movies was also selling prints out the side door. One example VCX came up with was some case where Deep Throat was seized in the early '70s from a theater in Riverside, California. In those days, Riverside was some little outpost small town with nothing there, and Arrow didn't go there at all because it was such a small market. And so the dupers said, 'Oh, cool, we can show it there.' It just wasn't a big enough market that Arrow wanted to go out there, but somebody else did. Where they got the print, we don't know, but they got one somehow. There were tons of unauthorized copies of that hanging around, and Arrow couldn't sue those pirates because anybody who showed the movie got thrown in jail, and nobody wanted to go out and say, 'Oh, it's my movie' and all that stuff. So there were a lot of instances of that, we believe."
The pirated exhibition of a copyrighted work shown without the copyright notice does not affect the work's copyright status.
In any case, Arrow's First Amended Complaint seeks the same copyright/trademark protection for The Devil in Miss Jones that it has sought for the Deep Throat movie and name ("mark") and the Linda Lovelace name/mark, including a permanent injunction against VCX using the trademarks and a court order requiring VCX to turn over to Arrow, or to itself destroy, "all signs, labels, packages, wrappers and advertisements and DVDs bearing the mark 'Deep Throat,' the mark 'Devil in Miss Jones' or the mark 'Linda Lovelace.' "
However, in the current complaint, Arrow has also added a claim of counterfeiting, alleging that VCX "knew that the goods ... were counterfeit and intended to offer, did offer and are offering them for sale," and that the company "intentionally used in commerce and are using in commerce on goods ... a counterfeit mark ... knowing the mark was counterfeit, in connection with the sale, offering for sale and distribution of said goods, which use was and is likely to cause confusion, mistake and to deceive."
Therefore, Arrow has also asked that the court order VCX to "recall all copies distributed to their trade customers and include those returned copies in that to be turned over to Plaintiff’s attorney either at the time that the copies are initially turned over or within thirty (30) days of Defendant’s receipt of copies returned from trade customers." Arrow also seeks monetary damages for the infringement of the trademarks/copyrights and the counterfeiting of the Devil and Deep Throat DVDs.
VCX owner David Sutton, who could not be reached at press time, has previously denied that any of VCX's releases are pirated versions, and said that "There is not a voice louder than mine advocating against piracy." When contacted by AVN in late April, he said that he hoped that he and Arrow owner Raymond Pistol could talk out the problems regarding the alleged copyrights and come to an equitable conclusion.
