Showing posts with label Lovelace. Show all posts
Showing posts with label Lovelace. Show all posts

Friday, September 6, 2013

'Deep Throat' Makers Cannot Halt Release of Unauthorized 'Lovelace' Biopic


Images Courtesy of Radius-TWC

Entertainment Weekly and Variety report that the recent Weinstein/Millennium film “Lovelace” appears to be clear of a possible preliminary injunction that could have kept the film from being released in theaters.

The producers of the film were sued for copyright and trademark infringement in New York federal district court by Arrow Productions, the owner of the copyrights and trademarks on the original adult "Deep Throat" franchise, which starred Linda Lovelace.

The recently-released biopic film stars Amanda Seyfried as Lovelace, a fragile woman who becomes an infamous porn star seemingly happy with her decisions, but who eventually breaks free from her husband and discloses the truth about her treatment in order to prevent other women from getting similarly exploited.

According to the Complaint, the producers used the name "Lovelace" and several minutes of copyrighted material from the 1972 adult film "Deep Throat," without permission. "In fact, the title 'Lovelace' derives its market appeal entirely from decades of cultural cache embodied in the trademarked name Linda Lovelace. … Rather than negotiating licenses for Deep Throat IP, rather than deferring to Arrow’s vision for the Deep Throat brand, Defendants have simply taken what they wanted and crossed their fingers.”

However, despite Arrow's characterization of the producers as having "tak[en] several minutes of copyrighted material" without permission, the truth is not that simple.

Arrow claims that the copyright infringement arises from a "re-creation of a short scene" and a "brief re-enactment of the filming of scenes of 'Deep Throat'," not wholesale theft of copyrighted footage.

Consequently, Arrow alleges, these unauthorized reenactments constitute "derivative works" of the original copyrighted material, which Arrow owns.

Furthermore, Arrow alleges that the value of the "Deep Throat brand" has been "decimated," because it did not approve the film's depictions of exploitation of the film's protagonist.  It is not clear if any consumers have been confused into believing that Arrow endorsed or sponsored the film.

Intellectual property law is not so clearly on the side of Arrow.  Performing a "re-creation" of an event does not necessarily constitute copyright infringement, simply because that event was filmed.

Arrow's Complaint itself alleged that the 1972 release of the film Deep Throat "was a watershed moment for American culture."

Re-enacting an event does not necessarily violate copyright laws.  A reenactment that borrows too heavily from copyrighted material could infringe, however.  For example, if the reenacted footage replicated the use of a copyrighted script line by line, it could infringe the screenwriter's rights. Furthermore, copyright law permits a copyright owner to control "public performance" of his work.

A "free speech/fair use" defense could be successfully asserted by Lovelace's producers, based on the argument that the derivative use made was transformative, in that it commented on the event by adding some additional material or perspective.

Consequently, application of this defense would permit some degree of interpretative reenactment as a form of social commentary on the underlying factual events that took place during the filming of Deep Throat.

For now, at least, the film's producers have been able to release the movie, but since the Complaint (embedded below) has not yet been dismissed or resolved, further litigation appears possible.