October 26, 2011 1:20pm PT by Eriq Gardner
How a Nasty Legal Fight Over 'Deep Throat,' 'Debbie Does Dallas' Was Settled
Last week, two warring adult film companies resolved differences in what can only be described as a kiss-and-make-up agreement for the ages. One of the companies got to walk away with the copyright to the adult film classic Deep Throat, and all it had to give up was any right to distribute another XXX-classic, Debbie Does Dallas.
But there's a lot more to this story, so let's go deeper...
Arrow Productions claims to hold a valid copyright to Deep Throat, having bought rights to the 1972 porno starring Linda Lovelace from its producer, Louis Peraino. In 2009, Arrow sued its competitor, V.C.X. for selling thousands of copies of the film.
But wait, there's a twist.
David Sutton, president of V.C.X., told the Las Vegas Sun in 2009 that the only reason his company began distributing Deep Throat was because Arrow had first started distributing Debbie Does Dallas and The Devil in Miss Jones, two other porn classics which V.C.X. felt it had copyright ownership over.
Why hadn't V.C.X. sued Arrow?
Because, according to Sutton, it would raise questions about whether any of these adult film classics were really under copyright authority. Both Deep Throat and Debbie Does Dallas were both originally distributed in theaters without a copyright notice, and based on pre-1989 copyright laws, it would mean that both were in the public domain.
Faced with allegations of infringing another company's copyright, V.C.X. had no choice but to raise doubts about Arrow's hold on Deep Throat, which also meant throwing open the door that someone might challenge V.C.X.'s own hold on Debbie Does Dallas. Sutton told the Sun in 2009 that the company would have preferred reaching an agreement so that a judge wouldn't declare any of these films in the public domain.
Meanwhile, at the same time V.C.X. was raising this issue, it was suing 113 anonymous pirates for infringing its copyright on Debbie Does Dallas by sharing the film on BitTorrent.
In other words, there's a strong possibility that Debbie Does Dallas isn't copyrighted, and yet, V.C.X. was in court saying the opposite was true. (V.C.X. hasn't yet returned requests for comment.)
Now, two years after Arrow's lawsuit was filed, the parties have seen the wisdom of kissing and making up, just as Sutton once outlined the scenario.
On October 18, the parties submitted a stipulation that was approved by a judge. The consent accepts Arrow's legal theory that it holds copyright on Deep Throat because when the film was originally distributed in 1972, Peraino never relinquished any copies of any of the prints. The film might not have contained a copyright notice, but according to the stipulation, it didn't matter because Peraino leased the entire theater, paid all of the employees, and collected all of the revenue.
In entertainment, it's called "four-walling," and essentially means the film was never really "published." Got that? Deep Throat was never officially released theaterically. Never mind those reports about it being the most profitable movie ever with $600 million in box office receipts.
And why is V.C.X going along with this?
Because Arrow has agreed to be permanently enjoined from manufacturing, copying, or reproducing Debbie Does Dallas, even though Arrow's attorney still believes Debbie Does Dallas is in the public domain. And with good reason. There's a case from 1987 where V.C.X. defends itself from charges it failed to pay proper royalties on Debbie Does Dallas, and successfully gets a judge to acknowledge the film had been thrust "irretrievably into the public domain."
So why are companies claiming copyright on these porn classics? It might take a future challenge to determine whether any of these films are really still copyrighted.