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A depiction of oral sex can qualify as transformative fair use in the right context. That’s just one of the lessons from a federal judge’s ruling on Monday concerning The Weinstein Company’s Lovelace, a biopic about porn star Linda Lovelace.
Although the film didn’t steam up the box office, it was notable for launching a copyright lawsuit on the eve of release last August. Arrow Productions, which purports to own rights to Deep Throat — featuring Lovelace — claimed that the biopic was a copyright violation of its classic 1972 porn movie. The judge refused an injunction anyhow.
Nevertheless, the lawsuit proceeded, and after the parties played, “I’ll show you mine if you show me yours,” the dispute focused on three scenes:
“(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.’”
The defendants, including Millennium Films and Eclectic Pictures and United Entertainment, put up a fair use defense, causing U.S. District Judge Thomas Griesa to do the standard four-factor test with an emphasis on the first — the purpose and character of the use.
One of the primary considerations is whether the new work is transformative, meaning it “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”
Judge Griesa says there can be no doubt.
“Deep Throat is a pornographic film containing seventeen scenes of explicit sexual content,” he writes. “Conversely, Lovelace is a critical biographical film that documents the tragic story of Linda Lovelace and provides a behind-the-scenes perspective on the filming of Deep Throat. It does not contain any nudity. Defendants have recreated the three challenged scenes in order to focus on a defining part of Lovelace’s life, her starring role in Deep Throat.”
And how about that famous oral sex scene?
The judge notes that the scene in Lovelace is not simply a progression from faux-medical consultation to a sexual encounter as done in Deep Throat but rather treated to inform audiences about the protagonist’s inexperience and relationship with Chuck Traynor, who was a production manager on the ’72 film. The biopic eschews sexual explicitness for some implicit commentary, such as when Dr. Young ejaculates prematurely, and Lovelace exclaims, “I’m really sorry. Did I do something wrong?” The judge deconstructs the scene and the set-up to show how it informs “the most important plotline in the film—Traynor’s control, abuse, and manipulation of Lovelace.”
The defendants score points on the first factor because they’ve created a film with new purpose. It’s enough to outweigh Arrow Productions’ advantage on the second factor — the nature of the copyrighted work (a creative film). As for the third factor of substantiality, the judge doesn’t think three scenes totaling four minutes of a 61-minute film is that significant or non-critical while the fourth factor of Lovelace‘s market effect on Arrow’s ability to license Deep Throat derivatives doesn’t tip the scales toward the plaintiff.
Finally, Arrow is unsuccessful on trademark claims because, well, nobody is going to confuse the biopic as coming from the rightsholder of an old porn film.
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