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Linda Lovelace Biopic Found Not to Have Infringed Landmark Adult Film ‘Deep Throat'

Thursday, September 4, 2014

By Blake Brittain

Aug. 28 — The producers of a biographical film about actress Linda Lovelace did not infringe on the intellectual property of the makers of “Deep Throat” by recreating scenes from the famous 1972 pornographic film, U.S. District Court for the Southern District of New York ruled Aug. 25.

The recreations were transformative and thus protected under the fair use doctrine, the court ruled. The court also rejected trademark infringement and false designation of origin claims.

In 1972, the sexually explicit adult film “Deep Throat” was released, featuring actress Linda S. Boreman (1949-2002), who was known by her stage name Linda Lovelace.

In 2013, a biographical film about Lovelace, titled “Lovelace,” was released featuring actress Amanda Seyfried portraying Linda Lovelace.

Arrow Productions Ltd., the producers of “Deep Throat,” sued the Weinstein Co. in August 2013, asserting that Weinstein's film “Lovelace” had infringed Arrow's copyright interest in the film as well as its “Deep Throat” and “Linda Lovelace” trademarks.

The court dismissed Arrow's claims, holding that Weinstein's recreation of scenes from “Deep Throat” in “Lovelace” constituted fair use, and that Arrow had failed to demonstrate that Weinstein had infringed its trademark rights.

Recreation of ‘Deep Throat' Scenes Was Fair Use

Arrow asserted that three scenes in particular from Weinstein's film infringed “Deep Throat.” All three of the “Lovelace” scenes involved recreations of scenes from “Deep Throat” that included depictions of events that occurred around the filming of these scenes.

For example, the recreation of the opening scene of “Deep Throat” in “Lovelace” also depicts the camera crew recording the scene, the nerves Lovelace experienced during its filming, and the director giving Lovelace advice.

The second recreated scene is shown in the background during an encounter between Lovelace and Hugh Hefner at a screening of “Deep Throat.” The third shows Lovelace's husband's reaction following a pornographic scene's filming.

The court analyzed each scene under the Second Circuit standard, focusing on the purpose and character of the use to determine that Weinstein's recreations were significantly transformative to constitute fair use. The court ruled that all three scenes added “a new, critical perspective on the life of Linda Lovelace and the production of ‘Deep Throat.' ”

No Trademark Infringement by Weinstein

Arrow also brought trademark infringement, dilution and false designation of origin claims against Weinstein related to its trademarks “Linda Lovelace” and “Deep Throat.”

The court rejected the infringement and false designation claims because there was no proof that consumers would be confused by Weinstein's film. The court also said that Arrow had failed to provide a factual basis for its dilution claim.

Text is available at http://www.bloomberglaw.com/public/document/ARROW_PRODUCTIONS_LTD_v_THE_WEINSTEIN_COMPANY_No_13_Civ5488_2014_.

To contact the reporter on this story: Blake Brittain in Washington at bbrittain@bna.com

To contact the editor responsible for this story: Anandashankar Mazumdar at amazumdar@bna.com

 

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