All is Fair (Use) in Love (Lace)

I learned about this interesting fair use case from a tweet posted his week by Eleonora. Thank you @eLAWnora!

On August 25, 2014, Judge Thomas P. Griesa from the Southern District of New York (SDNY) dismissed the copyright and trademark infringement complaint of Plaintiff Arrow Productions against Defendants The Weinstein Company LLC, the producers of the movie Lovelace. The case is TPG Arrow Productions, Ltd. v. The Weinstein Company L.L.C. et al, 1:13-cv-05488.

Plaintiff is a company producing and distributing films. It owns the copyright to the 1972 movie Deep Throat starring Linda Lovelace. It also owns the trade marks “Linda Lovelace,” one for films and the other for adult sexual aids. It also owns the trade mark “Deep Throat” for alcoholic beverages and energy drinks. Defendants produced and distributed the 2013 movie Lovelace, a biopic about the (in)famous actress, starring Amanda Seyfried.

Plaintiff filed a copyright and trademark infringement suit in the Southern District of New York (SDNY) in August 2013 against The Weinstein Company LLC, which produced the movie Lovelace, claiming copyright and trademark infringement. Defendants moved to dismiss.

As explained by the SDNY, “Deep Throat is a famous pornographic film replete with explicit sexual scenes and sophomoric humour.” It has achieved cult status. I have not seen it, but one time I found at a library sale a tattered copy of the autobiography of Linda Lovelace, Deep Throat. I bought it, as I cannot resist a 10 cent price tag. I was not expecting much, but the book is quite interesting because it depicts the story of a woman who was abused by her entourage and forced to play in pornographic movies. The movie produced by Defendants was inspired by this book as it describes Linda Lovelace’s life and the physical and emotional abuse she suffered. It does not contain pornographic scenes or nudity.

She Is Doing Whaaaaaat?

Plaintiff alleges that defendants infringed its copyright by copying three scenes from the Deep Throat movie into their Lovelace movie. Indeed, some scenes of the Lovelace movie show behind-the-scenes accounts of some of the most famous Deep Throat scenes. The court found no infringement, because it was fair use.

The doctrine of fair use, originally created by the courts, is now codified in the Copyright Act of 1976, 17 U.S.C. §107, and provides an affirmative defense to a copyright infringement claim. 17 U.S.C. §107 lists four factors which the courts consider when determining if a particular use of a protected work is fair:

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.”

As the determination of fair use is a mixed question of law and fact, the SDNY reviewed and compared both movies to undertake its fair use analysis. Some days at work are better than others.

The SDNY found that Lovelace is “entitled to a presumption of fair use” under the first fair factor, the purpose and character of the use, as it is a “critical biographical work,” and biographies are generally considered fair use. The more important question, under the first factor, is whether the use was “transformative.” In Campbellv. Acuff-Rose Music, Inc., the Supreme Court explained in 1994 that the first factor aims at determining whether the use is transformative, as adding something new, or if it merely supersedes the original work.

Here, the court found that the three scenes added “a new, critical perspective on the life of Linda Lovelace and the production of Deep Throat.” The Lovelace movie is not pornographic but instead focuses on Linda Lovelace’s life and her emotional state while filming Deep Throat. It portrayed her “as an unsuspecting amateur, anxious about her role in the film” and how she was intimidated by her then-husband Chuck Traynor into participating to the film. As such, the Lovelace scenes serve a different purpose than the original, pornographic scenes.

Even if Lovelace is a commercial work, this does not prevent finding fair use. As explained by the Supreme Court in Campbell, “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.”

The second factor, the nature of the copyrighted work, also weighed in favor of defendant, as it was of creative and expressive nature, which provides “a greater leeway… to a claim of fair use” (Cariou v. Prince, Second Circ. 2013 at 709).

Is This Fair Use? 

The third factor, the amount and substantiality of the use, also weighed in favor of the defendants. Lovelace copied or recreated three scenes from Deep Throat but they contained original dialogues and lasted about four minutes, while Deep Throat is sixty-one minutes. Therefore, the SDNY found “that defendants did not copy any more than necessary to achieve its creative purposes.” The purpose of Deep Throat was pornographic while Lovelace is a critical, biographical film.

The fourth factor, the effect of the use on the market, also weighted in defendant’s favor. Courts consider whether the allegedly infringing work harms the market for derivative works for the copyright owner of the original work. Lovelace is a transformative use of Deep Throat as it has a different subject and thus could not supplant demand for the original work.

For all these reasons, the SDNY found that defendants had not infringed Plaintiff’s copyright.

Plaintiff also claimed trade mark infringement and trade mark dilution by blurring and tarnishment because Defendants named  its movie Lovelace and referred to Deep Throat when marketing it. However, the SDNY found no trademark infringement as consumers were not likely to be confused by believing that Plaintiff was involved in the production of Lovelace. The dilution claim failed as a matter of law, as Plaintiff had failed to provide any basis for its dilution claim beyond reciting the law.

The SDNY entered judgment in favor for Defendants and dismissed the complaint in its entirety.