Arrow Alleges That 'Lovelace' Stole Its 'Deep Throat' Rights

NEW YORK CITY—In a lawsuit filed yesterday in the U.S. District Court for the Southern District of New York, Arrow Productions, Ltd. sued the producers of the new movie Lovelace, claiming that that violated Arrow's copyrights and trademarks for the classic XXX movie Deep Throat and its main actress, Linda Lovelace. "More than five minutes of footage in Lovelace are copyrighted material taken from Deep Throat," the lawsuit charges. "Defendants use that footage without license or permission. In fact, the title Lovelace derives its market appeal entirely from decades of cultural cache embodied in the trademarked name Linda Lovelace. Defendants use that title without license or permission." According to the complaint, which was filed by Evan Mandel of the New York law firm of Mandel Bhandari LLP, Lovelace copies three scenes from Deep Throat, including its best-known one, where Harry Reems as Dr. Young first discovers that Linda Lovelace has her clitoris in her throat. "The third scene Lovelace copies is the most famous and iconic scene in Deep Throat—'the money shot,' in film industry parlance," the complaint states. "The premise of Deep Throat is that Linda Lovelace cannot achieve sexual satisfaction because her clitoris is located in her throat. During the film's most famous scene, Dr. Young explains to Lovelace that she can achieve sexual satisfaction by performing oral sex, and proceeds to instruct Lovelace to perform oral sex on himself. The scene lasts approximately three or four minutes, and culminates with both Lovelace and Young obtaining sexual satisfaction, and Young waving a flag. Lovelace copies every single detail of this scene, including each and every word of dialogue." Also alleged to have been copied is the movie's opening scene, which shows Lovelace driving a blue Cadillac down a palm-tree-lined boulevard in Florida. "Lovelace opens in the exact same manner, and copies almost all of the cinematic details: the position of Lovelace in the car; the make and model of the car itself (except that the Cadillac in Lovelace is red); Lovelace's costume; and the road down which she is driving," the complaint states, noting that the only other difference is that in Lovelace, that scene is seen as a "movie-within-a-movie," with Hank Azaria, as director Gerard Damiano, giving scene directions to Lovelace star Amanda Seyfried. The same is alleged "in every single detail" for the scene where Lovelace walks in on actress Dolly Sharp getting licked by actor Ted Street, during which she utters the iconic line, "Do you mind if I smoke while you eat?" In all, the alleged thefts account for approximately one-twelfth of Deep Throat's 62-minute running time; arguably a greater appropriation than can be excused under the "fair use" doctrine. But it isn't just the recreation of Deep Throat's footage that Arrow is suing about. "Lovelace misappropriates these three pivotal scenes from Deep Throat... in such a way as to decimate the value of the Deep Throat brand," the complaint charges. "In conducting publicity for the upcoming release of Lovelace, the actors who starred in Lovelace have spoken extensively about Deep Throat, and have described Deep Throat as being a horrible and exploitative film." The complaint goes on to cite examples of Seyfried and other actors in the film disparaging Deep Throat on, for example, The David Letterman Show, where Seyfried stated that Deep Throat "was pretty depressing, which is kind of why we made the movie," and that Lovelace herself "got nothing, she got screwed." Similarly, Azaria, in an interview on The Daily Show last week, stated that Lovelace's treatment on the set was "horrible," with Daily Show host John Oliver adding, "[T]he reality... was appalling because she suffered deeply, was exploited on an incredible scale, and was not respected in any human form." Not mentioned in the complaint is an interview Seyfried did with Salon.com, in which she states that Lovelace "was being coerced into all this. She claimed she was being coerced into all this stuff," and that "She really fought hard when there was no hope, and people were just really not listening." Similarly, a story on MTV.com quotes Seyfried as saying, "Knowing now what Linda had gone through and what a lot of people have gone through—still, around the world today, much less so in the United States—women are coerced into it." But Lovelace's alleged maltreatment on the set of Deep Throat has been widely disputed by everyone who was present during the filming. "The morning we were going to do the 'deep throat' scene, she came to me and she was very upset," recalled Damiano in an interview for the documentary Inside Deep Throat. "She says, 'Chuck [Traynor, Linda's husband/manager] is so jealous of Harry Reems that I don't think I can do a good job.' Chuck was a member of our crew. The production manager sent him—he said, 'We're running out of film,' so he [Chuck] went to Miami to buy film when we shot the scene. Linda was completely relaxed, and she did a marvelous job." "Linda needed somebody to tell her what to do," he said later, in response to Lovelace's charge that Traynor had held a gun to her head during the Deep Throat shoot. "And as long as she had somebody telling her what to do, she was happy. So when she made the movie, she was happy making the movie. After the movie, somebody said, 'Hey, you shouldn't have made that movie,' so she became unhappy about making the movie, which wasn't true. She was very happy about making the movie." So part of Arrow's purpose in suing Lovelace's makers is to preserve its own reputation, as well as the reputation of Deep Throat itself, and of Linda Lovelace, despite Linda's many statements disparaging Traynor, Damiano and her own role in the film. "Arrow is in the business, among other things, of licensing the intellectual property that it owns in Deep Throat," the complaint notes. "When it negotiates a license to that IP [Intellectual Property], Arrow looks not only to generate revenue in the short term, but also to preserve the value of the Deep Throat brand in the long term." Much of the complaint is taken up with Arrow detailing how it has preserved its interest in Deep Throat over the years, including the fact that it has the only original internegative of the film currently in existence, and that when it showed the film in various theaters, its owners (then the Peraino family) essentially took over those theaters for the run of the showings and had their employees collect all the box office receipts, and even run the projectors. They also copyrighted and trademarked the film in 1979, and maintained complete control over its eventual videotape distribution—a fact that remained true even after Pistol bought the Arrow properties from the Perainos. Arrow also claims full right to the use of the name "Linda Lovelace," a trademark also registered with the Patent and Trademark Office, in part because "The character Linda Lovelace is an inextricably [sic] part of the Deep Throat brand." Regarding licensing Deep Throat and/or Linda Lovelace to filmmakers or other interested parties, "Arrow considers a number of factors, including whether Arrow is engaged in a competing project and how the proposed work will portray the Deep Throat film and the actors and others involved in the production of the film," the complaint states. "Arrow will not license Deep Throat without first ensuring that it will be portrayed fairly and accurately. If Arrow concludes that the proposed work will not harm Arrow or the Deep Throat brand, then it will enter into a negotiation with the filmmaker (or the filmmaker's representative) about the terms of a license. "Licensing Deep Throat is particularly sensitive given the extensive controversy that has surrounded the film," the complaint continues. "For example, after the film was released, Linda Boreman [Lovelace's real name] claimed that she participated in the film only after being threatened with violence and being placed under duress. Boreman later recanted those claims. But Deep Throat has suffered far more controversy than the typical film does and it has been harmed far more than the typical film has been by untrue and unfair attacks and mischaracterizations. Every time Deep Throat is the subject of further cinematographic and/or media attention, there is a substantial possibility that artists and/or journalists will repeat the falsehoods and mischaracterizations that have victimized Deep Throat in the past without placing the incorrect information in the correct context, thus causing further harm to Deep Throat. For this reason, protecting the cultural and economic value of the intellectual property in Deep Throat requires a very careful and thoughtful assessment of how any future use of those intellectual property rights will affect the Deep Throat brand." The complaint further details how Pistol, as the owner of Arrow Productions, carefully supervises any licenses he has given to filmmakers, including being named as a producer and having some measure of control over the script. But perhaps the meat of the complaint is its recounting of Lovelace's producers' attempt to ignore Pistol's assertion of rights to Deep Throat, their failure to respond to Arrow's two cease-and-desist letters to several of those producers, and the eventual response from the producers' attorney, Donald R. Gordon, which states in part, "It is our opinion that the production, distribution and exploitation of the Motion Picture [Lovelace] will not violate any of your client's purported trademark rights in 'Linda Lovelace' and 'Deep Throat' or your client's purported copyright in the motion picture 'Deep Throat.' Accordingly, my clients are not interested in entering into any 'global agreement' with Arrow Productions with respect to such rights." The complaint alleges that that December 1, 2011 letter from Gordon was the first time that Arrow or Pistol knew that Lovelace would include a "re-creation of a short scene from 'Deep Throat' and the brief reenactment of the filming of scenes of 'Deep Throat.'" It also charges that shortly after receiving that letter, Pistol was contacted by Eric Danville, author of The Complete Linda Lovelace, asking on behalf of the producers to license the reenactments in Lovelace, but when Pistol called the number of a production crew member which had been given to him by Danville, no one returned his call. But the pivotal moment that apparently sparked the filing of the lawsuit was a phone call Pistol received from David Bertolino, writer/producer of the play The Deep Throat Sex Scandal, whose Deep Throat footage and characters Bertolino had licensed from Arrow, informing Pistol that Bertolino had seen a screening of Lovelace, and detailing the similarities between portions of Lovelace and portions of Deep Throat—and that he claimed also to have received a call in or around January of this year from Danville. "Mr. Danville explained that he was calling on behalf of the producers of Lovelace," Bertolino stated in an affidavit. "Mr. Danville said that the producers of Lovelace were attempting to negotiate a license from Arrow for their film. Mr. Danville asked about the terms of my license and what I had paid for the license. Since I did not feel I had paid a market-rate price for my license, I did not feel that it was appropriate to discuss the terms of my license with Mr. Danville. I politely explained to Mr. Danville that I did not feel that it would be right for me to divulge the terms of my license. Mr. Danville, however persisted to pepper me with questions about my license. He proceeded to name various dollar amounts and ask whether my license cost more or less than these amounts. I continued to politely deflect his questions. Mr. Danville seemed extremely anxious during the call. My impression was that he was under some pressure to obtain a license from Arrow." For his part, Danville denies having attempted to find out how much Bertolino paid for the Deep Throat/Linda Lovelace rights he obtained, though he admits to having given Pistol a producer's number, adding, "In an interesting take on 'no comment,' I actually have no comment because there's nothing really for me to say." Bertolino, who has received permission from Arrow to turn his play into a movie, and possibly even a series on cable TV, was forthcoming about both his role in the lawsuit and his relationship with the adult production community. "I'm very proud to be part of this effort to defend the intellectual property rights of both my play and of course the original Deep Throat movie," Bertolino said. "There are lines from the play that have been taken. There's no excuse for them to have started negotiations with Arrow, intend to do a licensing agreement. Eric Danville got me on the phone and questioned me on behalf of the producers of this movie and asked me for help, asked me to tell him how much I'm paying for licensing and continuation rights, and I refused to talk to him about it. I kept saying, 'You need to talk to Raymond; I'm sure he's going to be reasonable.' At that point, they stopped negotiating with Raymond and decided they'd just take a calculated risk that nothing would happen." "Raymond feels like these people didn't care, you know, because Raymond's calling himself a two-bit pornographer," Bertolino stated. "That's how he feels he's seen by the Hollywood community." On a more personal note, Bertolino himself feels hurt by some adult industry members who've accused him of riding roughshod over actors with the production of The Deep Throat Sex Scandal. "I felt good that I took a stand, and I just really felt, beyond writing the play, that I really got involved with you guys yesterday," Bertolino said, referring to the day he submitted his affidavit to Arrow's attorneys. "I would like to let the naysayers know that I'm not doing this to exploit the adult film industry, that I was 'going mainstream Hollywood' in using the adult film friends that I have, and yesterday, I felt like I embraced its defense. If anything, I'm giving an opportunity for people to work in a movie, an opportunity for people to work in a possible TV series, and I pay homage; I have never defamed anybody in the adult industry on my stage." Certainly, that's more than some of the actors in Lovelace can say. The complaint in Arrow Productions, Ltd. v. The Weinstein Company LLC, et al, can be found here. Check back with AVN.com for more developments in this important lawsuit for adult industry rights.