Access practice tools, as well as industry leading news, customizable alerts, dockets, and primary content, including a comprehensive collection of case law, dockets, and regulations. Leverage...
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.
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.' ”
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.
To contact the reporter on this story: Blake Brittain in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: Anandashankar Mazumdar at email@example.com
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)