Showing posts with label pornography. Show all posts
Showing posts with label pornography. 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.

Wednesday, August 15, 2012

ICANN Must Face Antitrust Scrutiny for Approving .XXX Top Level Domain

The International Corporation for Assigned Names and Numbers ("ICANN"), a non-profit corporation formed under California law that is the governing body that administers the Domain Name System ("DNS"), must face antitrust scrutiny for its approval of the .XXX Top Level Domain ("TLD").

Before 1998, the U.S. federal government operated the DNS.  In 1998, however, ICANN was formed to "privatize" the Internet, so that the DNS would be operated by a separate legal entity rather than a government.

As part of its ongoing responsibilities, ICANN determines what TLD's to approve, and chooses registries for existing or newly-approved TLD's.

As we have previously discussed, ICANN opened a Pandora's Box recently by accepting applications for thousands of new TLD's.

In 2011, one of the new TLD's that ICANN approved (with controversy) was the new .XXX domain.

ICANN claimed that one of the reasons for creating .XXX was to offer a clearly-defined TLD for adult entertainment and pornographic websites that could be more easily identified and filtered out by schools, libraries, churches and businesses.

Opponents argued, among other things, that it was a toothless exercise, since nothing prevented adult entertainment and pornographic websites to continue to register new domain names and corresponding websites ending with the more popular .COM, .NET, .ORG TLD's.

Therefore, opponents argued, it was nothing more than a money grab by ICANN and the chosen Registry for the .XXX (named "ICM"), to force individuals and businesses to expend money to purchase "defensive domain name" registrations.

Recently, Manwin Licensing International S.A.R.L. and Digital Playground, players in the adult entertainment and adult film industry related to the incredibly popular website, recently filed suit against ICANN and ICM, the Registry that operates the .XXX TLD, for antitrust violations under the federal Sherman Act.

Their argument was that ICANN and ICM had unlawfully price fixed and restrained trade by creating the .XXX domain name, with the goal of forcing businesses to unnecessarily spend millions of dollars to register domain names that it otherwise didn't want or need.

ICANN shot back by moving to dismiss the Antitrust Complaint against it, arguing that ICANN, as a not-for-profit organization authorized by federal law to govern the Internet, is not a market participant, and is therefore legally incapable of conspiring to set prices or monopolize markets.  

ICANN vigorously argued that its decision to create a new TLD such as .XXX is not an action that "could even conceivably result in a finding that [it] had restrained trade or monopolized a market."

However, despite its aggressive motion practice right out of the box, the U.S. District Court sitting in the Central District of California where the case was filed, ruled that ICANN CAN be accused of manipulating a market, for the purposes of receiving antitrust scrutiny under the Sherman Act.

Specifically, the Court found that "defensive registrations" are a legally defined market for antitrust purposes, and allowed that portion of the suit to proceed.  Further, the Court dismissed ICANN's argument that it was totally immune from facing antitrust scrutiny:

"The Court finds the transactions between ICANN and ICM ... are commercial transactions. ICANN established the .XXX TLD.  ICANN granted ICM the sole authority to operate the .XXX TLD.  In return, ICM agreed to pay ICANN money.  This is “quintessential” commercial activity and it falls within the broad scope of the Sherman Act.  Even aside from collecting fees from ICM under the contract, ICANN’s activities would subject it to the antitrust laws."

Wednesday, July 18, 2012

Sanctions Against "Rogue" Porn-Copyright Attorney Upheld by 5th Circuit

A federal appeals court has affirmed monetary sanctions assessed against an Intellectual Property lawyer who represents a maker of adult films in a series of copyright-infringement-by-downloading cases.

U.S. District Court Judge David C. Godbey in Dallas had ruled in January that attorney Evan Stone of Denton, Texas had abused the discovery process, and termed him a “rogue attorney" with "staggering chutzpah" in a blistering decision.

In a July 12 ruling, the 5th U.S. Circuit Court of Appeals  affirmed the District Court's sanctions levied against Stone.

Stone represents Germany’s Mick Haig Productions E.K. against a large number of unnamed "John Doe" Defendants who stand accused of downloading Haig’s “Der Gute Onkel” film without authorization. 

Stone, no stranger to controversy, was depicted strangling pirates near scantily-clad porn stars in a recent Dallas Observer article.

The District Court had appointed attorneys from Electronic Frontier Foundation and Public Citizen as "ad litem" attorneys to represent the interests of the John Doe defendants and it was these lawyers who had sought the sanctions in District Court. The sanctions included attorneys' fees of more than $22,000, and $500 per day for each day Stone failed to comply with a court order.

Stone filed an appeal to the 5th Circuit, arguing the sanctions were unjustified and that the court-appointed attorneys lacked standing to seek them.

The appeals court flatly rejected Stone's argument.  It specifically held that “no miscarriage of justice will result from the sanctions” that were imposed “as a result of Stone’s flagrant violation” of court rules.

The appeals court said Stone committed the violations by using the subpoena power of the court to find the identity of anonymous Internet users “then shaming or intimidating them to settle for thousands of dollars” each.

The appeal is captioned Mick Haig Productions E.K. v. Does 1-670, 11- 10977, U.S. Court of Appeals for the Fifth Circuit (New Orleans). The District Court case is Mick Haig Products E.K. v. Does 1-670, U.S. District Court, Northern District of Texas (Dallas).

The tactic of using the threat of John Doe subpoena discovery against pornography downloaders has come under recent fire in high-profile class action litigations against a number of adult film companies.