Both Arrow and VCX are in the business of “selling prerecorded sexually oriented motion pictures for personal home use, presently and, in recent years, in DVD format and previously in VHS videotape format.”
The basis of the lawsuit centers around VCX's alleged distribution of several thousand copies of the movie “Deep Throat” in early 2009.
Arrow claims to be the owner of the copyright to the original motion picture “Deep Throat” (Wikipedia, IMDB). Arrow states that the movie was created and directed by the late Gerard Damiano as a work for hire of Arrow’s predecessor-in-interest. According to Xbiz, “Deep Throat” was produced by Plymouth Distributing owner Louis "Butchie" Peraino, who later called the company Arrow Film and Video (now Arrow Productions).
One critical issue is whether or not the copyright rights to the original film are in the public domain (VCX apparently believes that they are). And because pre-1989 copyright law required all works to be published with a copyright notice, one issue is whether the movie was published without a copyright notice because, if it failed to do so, then the movie might be in the public domain based on pre-1976 copyright laws.
Without specifically stating whether or not copyright notices were printed on the early versions of the film that were shown in theaters, Arrow claims that during the early theatrical exhibition of the movie, Arrow always maintained control of the prints and the showing of the movie was “four-walled” (i.e., Arrow’s employees rented the theater, sold the tickets to moviegoers, collected the tickets, and operated the projected), and thus such theatrical exhibition did not constitute “publication” under the Copyright Act. [Any copyright experts care to field that argument?]
Arrow’s subsequent distribution of the film on videotapes purportedly had the required copyright notice. Arrow asserts that it registered its copyright to the movie in March 1979 (although curiously Arrow’s complaint does not mention the specific registration number).
In order to bolster its otherwise quite simple copyright infringement claim against VCX, Arrow throws in a barrage of trademark infringement claims. Arrow originally applied for the mark DEEP THROAT (for prerecorded videotapes involving adult content) back in 1998, but the application went abandoned after failing to respond to an office action. Arrow filed again in 2004, and this time, the mark was registered (for pre-recorded videotapes and DVD's featuring adult entertainment programs and movies). Arrow also registered the mark with the Nevada Secretary of State on February 23, 2009 (see E0094112009-8). Arrow claims to have used the mark to identify a series of adult movies going back to 1972.
Arrow’s complaint also cites to a trademark on the mark LINDA LOVELACE. Linda Lovelace was the pseudonym of Linda Susan Boreman, the actress who played the lead female character in the movie “Deep Throat” (and apparently also in one version of the sequel). However, “Linda Lovelace” was played by different actresses in several “Deep Throat” sequels and there were two additional movies other than “Deep Throat” that use the Linda Lovelace “character” in the title. Arrow currently has three applications pending for the LINDA LOVELACE mark (here, here and here). And for good measure, Arrow registered the mark with the Nevada Secretary of State on March 17, 2009 (see E0139232009-6 ).
Arrow’s causes of action are, with respect to the DEEP THROAT mark, for federal and state registered trademark infringement, counterfeiting [Query: if VCX's copy of the movie is an authentic copy (albeit unauthorized), how exactly is that a counterfeit?], common law trademark infringement, false designation of origin under Section 43(a) of the Lanham Act, and trademark dilution under federal and state law [Query: Is Deep Throat really famous as a mark identifying a source of goods or services – or famous as identifying a particular single work?]. And with respect to the LINDA LOVELACE mark, Arrow’s causes of action are for state registered trademark infringement, common law trademark infringement, false designation of origin under Section 43(a) of the Lanham Act, trademark dilution under federal and state law [Again, is Linda Lovelace really famous as a mark identifying a source of goods or services – or famous for the fact that it identifies a particularly famous pseudonym of an actress who appeared in the film?] Arrow’s final cause of action is for copyright infringement. [Placed in the complaint almost like an afterthought].
Arrow is seeking injunctive relief, an impounding and destruction of all infringing copies of the movie, and statutory damages (for the counterfeiting and copyright infringement claims).
Of course, despite the morass of causes of actions relating to trademark infringement in Arrow’s complaint, this case is really about copyright infringement, and more particularly, whether the film “Deep Throat” is in the public domain. After all, if the movie is in the public domain and all that VCX is doing is distributing that single work under that single title, then VCX is not using the term “Deep Throat” as a mark to identify the source of goods and services, but merely as the genuine title of the work.
Mark Felt – The “real” Deep Throat