44 F. Supp. 3d 359
S.D.N.Y.2014Background
- Arrow Productions owns copyrights and registered trademarks for the film Deep Throat and the names “Deep Throat” and “Linda Lovelace.”
- Defendants produced the 2013 biographical film Lovelace, depicting Linda Lovelace’s life and alleging coercion and abuse during the production/marketing of Deep Throat; Lovelace contains no nudity.
- Arrow alleged Lovelace copied three specific scenes from Deep Throat (opening driving scene; first pornographic/kitchen scene; Dr. Young diagnosis/sex scene) and reproduced dialogue, staging, camera angles, costumes, and settings.
- Arrow asserted copyright infringement (17 U.S.C. § 107) and trademark claims: infringement (15 U.S.C. § 1114), false designation (15 U.S.C. § 1125(a)), and dilution (15 U.S.C. § 1125(c)).
- Defendants moved for judgment on the pleadings under Fed. R. Civ. P. 12(c); the court reviewed both films and concluded the factual record for fair use was complete without discovery.
- Court entered judgment for defendants, holding the contested recreations were fair use and dismissing all trademark claims; denied defendants’ request for attorneys’ fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright: whether recreating three scenes from Deep Throat infringed copyright | Arrow: defendants reproduced dialogue, staging, camera angles, costumes and settings—unauthorized copying of protected expression | Defendants: use is transformative (critical biography), limited in scope, and constitutes fair use under §107 | Court: Held fair use — recreation was transformative, limited in amount, and did not harm market for the original; copyright claim dismissed |
| Fair-use factor — purpose/character | Arrow: defendants’ film is commercial and copies core expressive content | Defendants: Lovelace is a critical, biographical work adding new meaning and commentary; transformative use presumption applies | Court: Held purpose/character favors defendants — transformative despite commercial nature |
| Fair-use factor — amount/substantiality and nature of work | Arrow: copied qualitatively significant scenes (heart of work) from a creative film | Defendants: only three short recreated scenes (~4 minutes total) of a 61-minute film; tailored to new purpose | Court: Held these factors favored defendants overall; amount was no more than necessary though the original is creative (this factor not dispositive) |
| Trademark claims: infringement, false designation, dilution | Arrow: use of "Lovelace" title and references to "Deep Throat" would cause consumer confusion, dilute or tarnish famous marks | Defendants: use pertains to biographical/critical film and does not create source confusion or plausible dilution | Court: Held trademark and false designation claims inadequately pleaded as to likelihood of confusion and dilution; dismissal granted |
Key Cases Cited
- Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994) (transformativeness central to fair use analysis)
- Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013) (fair use is context-sensitive; transformative works weigh heavily)
- Harper & Row Publishers v. Nation Enterprises, 471 U.S. 539 (1985) (fair use determination is mixed question of law and fact)
- Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc., 150 F.3d 132 (2d Cir. 1998) (copyright owner cannot preclude others from transformative markets)
- Bill Graham Archives, LLC v. Dorling Kindersley Ltd., 386 F. Supp. 2d 324 (S.D.N.Y. 2005) (biographical/critical uses can fall within fair use presumption)
- NXIVM Corp. v. Ross Institute, 364 F.3d 471 (2d Cir. 2004) (amount and substantiality factor examines qualitative and quantitative heart of the work)
- Wright v. Warner Books, Inc., 953 F.2d 731 (2d Cir. 1991) (caution urged in early dismissal on fair use where facts are contested)
- Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994) (factors for awarding attorney’s fees in copyright cases)
- Davis v. The Gap, Inc., 246 F.3d 152 (2d Cir. 2001) (purpose/character is the heart of fair use inquiry)