LOS ANGELES—A judge has dismissed in its entirety the lawsuit filed in August of last year by Arrow Productions alleging copyright and trademark infringement on the part of The Weinstein Company and several other corporate and individuals in the making of Lovelace, the 2013 mainstream biopic starring Amanda Seyfried in the titular role of Linda Lovelace, who famously starred in the adult classic, Deep Throat, the making of which serves as the basis for the mainstream movie.
As AVN reported here and here at the time of the filing of the suit, the copyright infringement claim is based on the inclusion of three scenes from the original in the biopic, "including its best-known one, where Harry Reems as Dr. Young first discovers that Linda Lovelace has her clitoris in her throat."
The complaint elaborates, "The third scene Lovelace copies is the most famous and iconic scene in Deep Throat—'the money shot,' in film industry parlance," the complaint states. "The premise of Deep Throat is that Linda Lovelace cannot achieve sexual satisfaction because her clitoris is located in her throat. During the film's most famous scene, Dr. Young explains to Lovelace that she can achieve sexual satisfaction by performing oral sex, and proceeds to instruct Lovelace to perform oral sex on himself. The scene lasts approximately three or four minutes, and culminates with both Lovelace and Young obtaining sexual satisfaction, and Young waving a flag. Lovelace copies every single detail of this scene, including each and every word of dialogue."
The complaint also alleged that the use of the three scenes was harmful to the Deep Throat brand, arguing, "Lovelace misappropriates these three pivotal scenes from Deep Throat... in such a way as to decimate the value of the Deep Throat brand. In conducting publicity for the upcoming release of Lovelace, the actors who starred in Lovelace have spoken extensively about Deep Throat, and have described Deep Throat as being a horrible and exploitative film."
AVN noted of the lawsuit, "So part of Arrow's purpose in suing Lovelace's makers is to preserve its own reputation, as well as the reputation of Deep Throat itself, and of Linda Lovelace, despite Linda's many statements disparaging Traynor, Damiano and her own role in the film."
AVN also observed of the suit, "But the pivotal moment that apparently sparked the filing of the lawsuit was a phone call Pistol received from David Bertolino, writer/producer of the play The Deep Throat Sex Scandal, whose Deep Throat footage and characters Bertolino had licensed from Arrow, informing Pistol that Bertolino had seen a screening of Lovelace, and detailing the similarities between portions of Lovelace and portions of Deep Throat—and that he claimed also to have received a call in or around January of this year from Danville."
Unfortunately for the plaintiff, U.S. District Judge Thomas P. Griesa from the Southern District of New York concluded that none of their claims were meritorious, and dismissed the complaint in its entirety. He did find for the plaintiff in one matter, however, ruling, "While the court finds that plaintiffs copyright claims fail as a matter of law, the court does not find that they are so unreasonable as to warrant the award of attorneys' fees."
On the seminal issue of copyright infringement, though, Griesa, in a 27-page ruling that includes a detailed assessment of the three scenes in contention, both of which he personally watched, found that while the scenes are protected by copyright law, their use in Lovelace fell under the "fair use" exception because of their "transformative use" in the biopic.
In his ruling, the judge breaks down the four statutory elements necessary to support a finding of fair use. The first, the purpose and character of the use, is what the judge calls "the heart of the fair use inquiry.
"Here," he writes, "the court finds that defendants’ use, or recreation, of the three scenes from Deep Throat constitutes transformative use, adding a new, critical perspective on the life of Linda Lovelace and the production of Deep Throat. Deep Throat is a pornographic film containing seventeen scenes of explicit sexual content. Conversely, Lovelace is a critical biographical film that documents the tragic story of Linda Lovelace and provides a behind-the-scenes perspective on the filming of Deep Throat. It does not contain any nudity. Defendants have recreated the three challenged scenes in order to focus on a defining part of Lovelace’s life, her starring role in Deep Throat."
The second factor involves "the nature of the copyrighted work," and asks the court to assess “whether the work is expressive or creative, with a greater leeway being allowed to a claim of fair use where the work is factual or informational.”
The judge ruled on this point, "Here, the court finds that the creative and expressive nature of Deep Throat places the film within the core of copyright protection and thus, that the second fair use factor favors plaintiff. However, similar to the commercial nature of defendant’s film, this factor 'may be of less (or even of no) importance when assessed in the context of certain transformative uses.'"
The third factor involves the "amount and sustainability of the use," and asks “whether ‘the amount and substantiality of the portion used in relation to the copyrighted work as a whole’ are reasonable in relation to the purpose of the copying.” Copyright holders have an edge in this area when "the portion used by the alleged infringer is a significant percentage of the copyrighted work, or where the portion used is essentially the heart to the copyrighted work.”
But here again, the judge found in the defendants'' favor, ruling, "In all, the three recreated scenes, which mostly contain original dialogue, last for roughly four minutes—comparatively, the running time for Deep Throat is sixty-one minutes. Defendants chose three scenes to recreate and each scene, as discussed above, serves a distinct and important purpose in telling the story of Linda Lovelace. The court finds that defendants did not copy any more than necessary to achieve its creative purposes."
The final factor in assessing fair use involves the "effect of the use on the market for or value of the work, which protects "the ability of a copyright holder to exploit the market for his work as well as the markets that the copyright holder could reasonably be expected to enter." In making this determination, the job of the court is to "consider the harm to the market for derivative works, which are defined as those markets that the creators of the original work would in general develop or license others to develop." Additionally, "[a] market harm for licensing revenues will only be recognized if the market is traditional, reasonable, or likely to be developed and is not a protected transformative use.”
And here again, the court found that "Lovelace could not supplant demand for Deep Throat, because the two films have entirely different subjects—one is a pornography and the other is a critical biography."
In this specific case, however, the court was also required to determine whether Lovelace had "harmed the market for derivative works of Deep Throat.
"In its complaint," Judge Griesa wrote, "plaintiff alleges that it had licensed the use of Deep Throat to the directors of the film Inferno, a film that like Lovelace, was to be about the life of Linda Lovelace. Plaintiff alleges that once the entertainment press began to report on the production of Deep Throat, funding for the film Inferno came to an end. Ultimately, Inferno was never produced and plaintiff attributes defendants’ alleged copyright infringement for this lost licensing revenue."
But the court found that the very nature of the Lovelace film undermines the argument, ruling, "Plaintiff’s claim must fail because defendants’ film Lovelace clearly constitutes a transformative use of the copyright protected film Deep Throat. Accordingly, plaintiff cannot prevent defendants from entering this fair use market."
Taken as a whole, these fair use findings in favor of the defendants required that the court rule that they "have not infringed upon plaintiff’s copyright protected material."
As well, the court ruled against Arrow in its three trademark claims, which it said all failed as a matter of law.
Tuesday, the court clerk entered the judgment into the record.
In response to a request for comment, Arrow Productions owner Raymond Pistol told AVN, "We are looking at our options and a possible appeal."
The Order by Judge Griesa can be read here.
