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IP/Entertainment Case Law Updates

Arrow Productions, LTD v. The Weinstein Company LLC

District court dismisses copyright and trademark infringement claims of copyright owner of 1972 pornographic film Deep Throat, holding that defendants’ 2013 critical biographical film about Linda Lovelace, star of Deep Throat, was protected by fair use as a transformative, behind-the-scenes perspective on the filming of Deep Throat, and finding no plausible allegations of trademark infringement.

Plaintiff entertainment company Arrow Productions owns the copyrights to the famous pornographic film Deep Throat (1972) as well as the trademarks “Deep Throat” and “Linda Lovelace.” Defendants The Weinstein Company LLC and associated entities participated in the filming of Lovelace, a biographical film released in 2013 that documented Linda Lovelace’s marriage to her husband Chuck Traynor and presented a behind-the-scenes look at Traynor’s abuse of Lovelace and the manner in which he coerced her to participate in Deep Throat. Lovelace does not contain any pornographic scenes or nudity.

Plaintiff filed suit for copyright infringement, alleging that defendants copied three scenes from Deep Throat in their film Lovelace and for trademark infringement alleging that defendants infringed on plaintiff’s two marks. The day after filing suit, plaintiff moved for a temporary restraining order to enjoin the distribution of Lovelace, which was set to be released two days later. The court denied the motion. Defendants then moved for judgment on the pleadings, and the district court granted the motion, dismissing plaintiff’s complaint in its entirety. 

The court first considered the copyright infringement claim and concluded that defendants did not infringe on plaintiff’s copyrighted material because their recreation of these three scenes from Deep Throat constituted fair use. In making this determination, the court considered the four factors enumerated in the Copyright Act: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the proportion used in relation to the copyrighted work as a whole; [NA1] and (4) the effect of the use upon the potential market for or value of the copyrighted work. Although plaintiff argued that a fair use determination was premature because there were factual questions that needed to be addressed through discovery, the court disagreed.

As the court noted, the first factor—the purpose and character of the use—is the heart of the fair use inquiry. A biographical work such as Lovelace is entitled to a presumption of fair use. Moreover, the most important question under this factor is whether the infringing work is transformative and therefore adds something new, with a further purpose or different character, and alters the first [NA2] with new expression, meaning, or message. Here, defendants’ use of the three scenes from Deep Throat constituted transformative use because they added a new, critical perspective on the life of Linda Lovelace and the production of Deep Throat. Whereas Deep Throat is a pornographic film containing seventeen scenes of explicit sexual content, Lovelace is a critical biographical film containing no nudity and documenting the tragic story of Linda Lovelace, including a behind-the-scenes perspective on the filming of Deep Throat. The three scenes are entirely different in Lovelace, designed to focus on Lovelace’s inexperience, her relationship with Traynor, and various other insights into Lovelace’s life. Therefore, although Lovelace was undoubtedly created for commercial purposes, the transformative nature of the work led the court to find that the first factor weighed in favor of a finding of fair use.

The court weighed the remaining factors. The second factor—the nature of the copyrighted work Deep Throat—favored plaintiff because Deep Throat is a creative and expressive work. However, this factor is rarely found to be determinative. The third factor—the amount and substantiality of the use—weighed in favor of defendants, because they did not copy any more than necessary to achieve Lovelace’s creative purpose. Given that Deep Throat is a pornographic film and Lovelace is a biographical film, the two films have entirely different purposes and it would be impossible for defendants to copy the core of Deep Throat. Finally, the fourth factor—the effect of the use on the market for or value of the work—also weighed in favor of defendants because Lovelace could not supplant demand for Deep Throat, since the films have entirely different subjects. Ultimately, the court concluded that defendants’ recreation of the three scenes from Deep Throat constituted fair use and therefore they did not infringe on plaintiff’s copyright-protected material.

The court then considered plaintiff’s claims for trademark infringement, false designation of origin, and trademark dilution and held that all three claims must fail as a matter of law. The court held that the first two claims, trademark infringement and false designation of origin, failed because plaintiff did not plausibly allege that consumers were likely to be confused by defendants’ conduct by advertising and distributing the film with the title Lovelace and by repeatedly mentioning plaintiff’s “Deep Throat” mark. The court also held that the trademark dilution claim failed because plaintiff set forth only bare-bones conclusory allegations and did not provide any basis for the allegations. Although the court dismissed plaintiff’s claims in their entirety, the court declined to award statutory attorneys’ fees.