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Arrow Prods., Ltd. v. Weinstein Co. LLC

United States District Court, S.D. New York

August 25, 2014

Arrow Productions, LTD., Plaintiff,
The Weinstein Company LLC, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Arrow Productions, Ltd., Plaintiff: Evan Mandel, Mandel Bhandari, L.L.P., New York, NY.

For The Weinstein Company L.L.C., Radius-TWC, Millennium Films, Inc., Nu Image, Inc., Animus Films, L.L.C., Untitled Entertainment, Inc., Eclectic Pictures, Inc., Avi Lerner, Laura Rister, 1-100 John Does, Defendants: Benjamin Stewart Akley, Tom J. Ferber, Pryor Cashman LLP, New York, NY.


Thomas P. Griesa, United States District Judge.

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This is a motion for judgment on the pleadings made by defendants the Weinstein Company, LLC, et al., against plaintiff Arrow Productions. Plaintiff, an entertainment company that produces and distributes films, owns the copyrights to the well-known pornographic film Deep Throat as well as the trademarks " Deep Throat" and " Linda Lovelace." Plaintiff alleges that in filming the movie Lovelace, a biographical account of Linda Lovelace, the star of Deep Throat, defendants infringed upon plaintiff's copyright protected material (17 U.S.C. § 107) and violated plaintiff's trademark rights (15 U.S.C. § § 1114, 1125(a), 1125(c)).

The court enters judgment for defendants and dismisses plaintiff's complaint in its entirety.


The following facts and allegations are drawn from the pleadings, and the works incorporated by those pleadings--namely, the films Deep Throat and Lovelace.

The Controversy

Deep Throat is a famous pornographic film replete with explicit sexual scenes and sophomoric humor. It was released in 1972 and stars Linda Lovelace[1]. The film is about a woman--Linda Lovelace--who cannot achieve an orgasm and undertakes a search for sexual fulfillment. Along the way, Lovelace meets Dr. Young who diagnoses her unusual problem and tells her that she can only achieve sexual satisfaction by performing oral sex (or, more specifically, the act which is the title of the film) because her clitoris is in her throat. In the end, Lovelace is finally able to achieve sexual fulfillment.

Lovelace is a biographical film that was released in 2013. It provides a two-pronged look at the tragic life of Linda Lovelace. First, the film documents Lovelace's

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marriage to her husband Chuck Traynor, her decision to enter the pornography business, and her development into a cultural icon. Then, the film provides a behind-the-scenes depiction of Lovelace's life that focuses on the physical and emotional abuse that Traynor inflicted upon her, and the manner in which he coerced her into participating in Deep Throat and its subsequent marketing. The film aims to demonstrate how it came to be that Lovelace--once the most famous star of the pornography business--became an outspoken critic of pornography later in her life. Lovelace does not contain any pornographic scenes or nudity.

Copyright Claim (Count One)

Plaintiff alleges that in their film Lovelace, defendants have copied the following three scenes from Deep Throat : (1) the opening scene in Deep Throat, where Lovelace is filmed driving down the road in her Cadillac, (2) the first pornographic scene in Deep Throat, where Lovelace walks in on a man performing oral sex on her housemate, and (3) the most famous scene in Deep Throat, where Dr. Young diagnoses Lovelace's condition and tells her that she can achieve sexual satisfaction by performing oral sex and suggests that she start with him. In its complaint, plaintiff alleges that in these three scenes, defendants " have reproduced dialogue word for word, positioned the actors identically or nearly identically, recreated camera angles and lighting, and reproduced costumes and settings." Compl. ¶ 57.

The court has reviewed both Deep Throat and Lovelace and below, summarizes the three contested scenes as depicted in each film.

(1) Scene of Lovelace Driving

Deep Throat: The film opens with Lovelace driving down the road in a blue Cadillac. While the opening credits are rolling, there are shots of Lovelace from inside and outside of her car. Lovelace is driving from a promenade along the water back to her home. During the scene, there is music playing--a version of " Ode to Joy" on the organ--and there is no dialogue. The scene ends when Lovelace arrives back at her home.

Lovelace: The directors of Lovelace have provided a behind-the-scenes depiction of the filming of this scene. This scene occurs roughly thirty minutes into Lovelace. At this point in the film, Lovelace has agreed to take part in the filming of Deep Throat and the parties begin by filming this opening scene.

The scene starts with Lovelace driving a red Cadillac in a motel parking lot. The film-crew--the director, videographer, and sound director--is in the car with her. Lovelace begins to drive and then slams on the brakes. Lovelace is clearly nervous. The director tells her to " drive normally," to which Lovelace responds, " I don't know how I normally drive. I just drive, you know?" The director tells her, " Yeah. That's exactly right. Just drive and pretend we're not here. Okay?" Lovelace collects herself and then proceeds to drive without a problem. She drives along the road by the water. The director tells her that she is " doing beautiful, baby." The scene then ends.

(2) First Pornographic Scene

Deep Throat: This is the second scene in the film. Upon arriving back home, Lovelace walks into the kitchen where she finds her housemate, Helen. There is a man performing oral sex on Helen in plain sight, as Helen sits on the kitchen table. Helen had recently been grocery shopping and there are groceries on the kitchen table. Lovelace, apparently unfazed, says to Helen, " that's a pretty sight. I hope that I'm not interrupting anything." Helen

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tells Lovelace that she's not interrupting and that the groceries also belong to her. Lovelace then begins to pet away the groceries. Helen asks Lovelace for a cigarette and turns to the man, delivering the punchline of the scene, " mind if I smoke while you're eating?" Lovelace exits the kitchen and a pornographic scene ensues between Helen and the man in the kitchen.

Lovelace: This scene is recreated about halfway through Lovelace. Here, defendants have not provided a behind-the-scenes account of the scene. Rather, the scene is shown during a recreated red-carpet screening of Deep Throat to a star-studded audience. Lovelace is seated in a private area with Hugh Hefner, the owner of Playboy Magazine, watching the film and discussing her future. Defendants cut between shots of the recreated scene and Lovelace speaking with Hefner.

In the recreated scene, Lovelace once again engages in a conversation with her housemate Helen, while a man is performing oral sex on Helen. In this filming, Helen is seated on a bar and there are no groceries. Lovelace is complaining to Helen about her inability to achieve an orgasm. Lovelace says that " there's got to be more to sex than a lot of little tingles. There's got to be bells ringing, dams bursting, or bombs going off." Helen then delivers the punchline of the scene, " you want to get off or wreck a city." Upon hearing this line, the audience at the screening erupts in laughter and defendants then cut back to the conversation between Lovelace and Hefner. Hefner tells Lovelace that she could be a real movie star.

Later in the film, during the behind-the-scenes depiction of the Lovelace story that focuses on her suffering during the filming and marketing of Deep Throat, defendants return to this scene. Here, defendants include the detail that during the screening, Hefner asks Lovelace to perform oral sex on him. It appears as though he is offering her a quid pro quo--if she performs oral sex on him, he will help her with her career.

(3) Scene with Dr. Young

Deep Throat: In this scene, Lovelace meets with Dr. Young to discuss her inability to achieve an orgasm. Dr. Young is an eccentric and quirky man and there is no evidence that he is an actual doctor apart from his title. His office is in his home and he is assisted by a young nurse, who also doubles as his sexual companion. During the beginning of the consultation, Dr. Young is blowing bubbles with a children's toy. Lovelace tells Dr. Young that there must be more to sex than " little tingles" and that she wants " to hear bells, bombs, and dams bursting." Dr. Young, after returning the bubble toy to the nurse, begins the consultation by examining Lovelace's vagina. He calls to the nurse for " sterilization" and the nurse returns with a dish of water into which he dips ...

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