COPYRIGHT LAW [First Published in New York Law Journal, October 20, 2014, p.2]
By Robert J. Bernstein and Robert W. Clarida
FAIR USE OF ABUSIVE FILM
Those of you who were sentient in the immediate aftermath of the Nixon resignation will know that an individual dubbed “Deep Throat” was so named by Woodward and Bernstein (no relation) after an infamous pornographic film released two years earlier. In 2005, Watergate’s “Deep Throat” was revealed to be then FBI Deputy Director W. Mark Felt. Twenty-five years earlier, the true story of the film Deep Throat and its star, Linda Lovelace (“LL”), was revealed in her autobiography, Ordeal, an exposé of spousal abuse and exploitation by producers of pornography. LL continued her campaign against pornography until her death in 2002, and thereafter her message was given wider voice in a 2013 film produced by The Weinstein Company (“Weinstein”) entitled Lovelace. The copyright owners of Deep Throat, Arrow Productions (“Arrow”), sought to halt distribution of Lovelace, claiming copyright infringement based on the alleged re-creation of three scenes from Deep Throat. In a careful and detailed opinion issued on August 25, 2014, the Honorable Thomas P. Griesa of the Southern District of New York upheld the defense of fair use and granted Weinstein’s motion for judgment on the pleadings.
The Two Films
The Court pulled no punches in describing the relevant portions of the plaintiff’s film, some of which may be familiar to older readers in light of the fanfare, controversy and wide distribution of the film notwithstanding counterproductive attempts to censor it. Those who seek a more detailed explication of the facts will find it in the opinion, or in the works themselves; here, we will be more general in our depiction.
Deep Throat is a farcical pornographic film with sophomoric humor and some original plot elements and dialogue serving to set up long and repetitive sequences of oral sex. Judge Griesa – eschewing value judgments, as precedent instructs – found that Deep Throat is a “creative and expressive” work within the core of copyright protection, including the three scenes Arrow claimed were unlawfully re-created in Lovelace. These scenes were (i) the opening scene from Deep Throat in which LL is driving along the water and through Miami streets until she arrives at her house while the film’s credits are displayed (the “Driving Scene”); (ii) a scene in which LL comes upon her housemate who is apparently enjoying a moment with a grocery delivery boy, following which LL voices great dissatisfaction with her erotic experience (the “Kitchen Scene”); and (iii) the most well-known scene – echoing the film’s title — in which a “doctor” examines LL and discovers her problem and a solution (the “Eponymous Scene”). Notwithstanding the original elements in these scenes (with the Driving Scene being the least original of the three), the court observed that “[t]he heart, or core, of Deep Throat is that it is a pornographic film that in particular, focuses on one type of pornographic act.”
In contrast, the court described Lovelace as having “an entirely different purpose – it is a critical, biographical film.” Lovelace, like the LL autobiography on which it is based, is a polemical revelation of the seduction, exploitation, abuse and degradation which LL experienced in the pornography industry, and presents these realities as part of LL’s campaign to warn other women against participation and to demonstrate the importance of unhesitating termination of abusive relationships. To the extent that Lovelace re-created the three scenes from Deep Throat, including some dialogue, the court determined that each use furthered the film’s contrasting purpose and was appropriately limited to the extent necessary to do so. The court also noted that the total time elapsed during the re-created scenes represented just 4 minutes out of Deep Throat’s 61 minutes. Judge Griesa further found that in Lovelace the re-created scenes were shot from a “behind-the-scenes” perspective to reflect how LL experienced the filming of the original scenes. Thus, in contrast to her depiction as an enthusiastic participant in Deep Throat, the re-creations in Lovelace presented LL as a nervous, naïve and hesitant first-time “actress” who was pushed into the part by her abusive and controlling husband.
The Fair Use Factors
Section 107 of the U.S. Copyright Act, 17 U.S.C. § 107, provides that four non-exclusive factors shall be considered in determining fair use:
(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 instructed by the Supreme Court in Campbell v. Acuff Rose (“Campbell”), the four statutory factors must not be treated in isolation; rather, “[a]ll are to be explored, and the results weighed together, in light of the purposes of copyright.” 
Campbell characterized the “central purpose” of first factor analysis as follows: to see “whether the new work merely ‘supersede[s] the objects’ of the original creation, . . . or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message; it asks, in other words, whether and to what extent the new work is ‘transformative.’” Campbell also invested “transformative use” with heightened influence within the inquiries into third factor (whether the amount copied was reasonable in relation to the purpose and character of the use), the fourth factor (the more transformative the use, the less likely it is to substitute for the original), and in the overall inquiry:
Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such works thus lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright, . . . [T]he 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 Fair Use Analysis in Lovelace
Relying on Campbell, its application by the Southern District and Second Circuit in Bill Graham Archives, LLC v. Dorling Kindersley Ltd. (“BGA”) and by the Second Circuit in Cariou v. Prince (“Cariou”), Judge Griesa determined that the first (purpose of use), third (amount used) and fourth (market harm) factors favored fair use. He found that the second factor (nature of the work copied) weighed against fair use but noted that this factor was not given significant weight in the overall analysis. He noted that no one factor is determinative, and that “the fair use determination is an open-ended and context sensitive inquiry” in which “[t]he ultimate test … is whether the copyright law’s goal of promoting the Progress of Science and useful Arts would be better served by allowing the use than by preventing it.”
The court first disposed of Arrow’s argument that fair use is not appropriate for resolution on a motion for judgment on the pleadings. Judge Griesa observed that, notwithstanding the generally “fact-driven” nature of fair use analysis, there is no Second Circuit authority preventing a determination of fair use on a motion for judgment on the pleadings. Although an atypical context for this determination, he considered it appropriate here because the operative facts were undisputed and contained in the films themselves. Thus, “there is a complete factual record before the court and discovery would not provide any additional relevant information in this inquiry.”
The court described the first factor (“the purpose and character of the use”) as “the heart of the fair use inquiry.” Moreover, Judge Griesa noted that in the Second Circuit “[t]here is a strong presumption … [that the first] factor favors defendant if the allegedly infringing work fits within the Section 107 preamble uses: criticism, comment, or research.” In addition, “‘[b]iographies in general, and critical biographies in particular, fit comfortably within these statutory categories of uses that can be fair.” As a result, the court had “no doubt that Lovelace, which is a critical biographical work, is entitled to a presumption of fair use.”
The court then examined what it viewed as “[t]he more important question under the first factor
and in the fair use analysis generally” – whether the use is “transformative.” On this question, the court determined that all of the re-created scenes from Deep Throat were used in a transformative manner
because they appeared in new contexts and with changed components in service of a new purpose, i.e.,
to place the original pornographic fantasies under the light of the harsh realities of exploitation and abuse permeating the pornography industry. Nor did Lovelace’s use of a few memorable lines of dialogue
from Deep Throat change the court’s analysis. In support of this point, Judge Griesa cited the BGA
district court finding that “it is both reasonable and customary for biographers to refer to and utilize
earlier works dealing with the subject of the work and occasionally to quote directly from such works”
The court considered Lovelace’s substitution of LL’s behind-the-scenes perspective on the
re-created scenes for the original’s pornographic focus, and its use of the scenes to establish a
reference point for critical commentary, to be significant elements establishing transformative use.
The first factor was therefore weighed in favor of fair use.
Because the second factor – the nature of the copyrighted work – is rarely significant in the
overall determination of fair use, the court’s evaluation of Deep Throat as a “creative and expressive”
work “within the core of copyright protection” (perhaps due to its fanciful, farcical and far-fetched
plot lines) may be viewed by others as not wholly deserved. In any event, it should have scant precedential value given the ad hoc and subjective nature of an inquiry into creative merit. One is reminded of
Justice Potter Stewart’s observation, when grappling with First Amendment issues, that “hard core pornography” is difficult to define, but “I know it when I see it.” “Redeeming social value” — like
artistic merit — is quintissentially in the eyes of the beholder.
On the third factor – amount and substantiality of the portion used – the court noted that the
re-creations constitute only four minutes of Deep Throat, a very small percentage, quantitatively,
of plaintiff’s sixty-one minute movie. Arrow argued, however, that, qualitatively, the scene in which
LL first visited the “doctor” was qualitatively a key scene in Deep Throat and another re-created scene
was also qualitatively significant. The court held, however, that because the re-created scenes were
necessary to effectuate Lovelace’s transformative purpose, the third factor weighed in favor of fair use.
Judge Griesa also found that because Lovelace, at its core, is a critical biography, and Deep
Throat, at its core, is pornography, “it is impossible that defendants could have copied the core of
Deep Throat.” This last observation is dicta, as the court had already found that the third factor
favored Lovelace because it copied only what was necessary to its transformative purpose. Considering
what might be “possible” under a different set of facts would require an advisory opinion on
On the fourth factor – potential market harm – the court looked to both current and likely-to-be-developed markets, including markets for derivative works based on Deep Throat. Arrow identified one potential third-party license for a biographical film based on Deep Throat and its star which Arrow
claimed was lost due to Lovelace. The court, however, determined that because the use in Lovelace was a
transformative fair use which Arrow had no right to monopolize, the claimed harm was not cognizable
under factor four. Moreover, as to market harm generally, the court determined that the entirely different purposes of Deep Throat and Lovelace made it unlikely that potential fans of the former would be lost to viewers of the latter. Factor four was therefore weighed in favor of fair use.
In his aggregate assessment, Judge Griesa succinctly concluded that, in light of his factorial
analysis, “defendants’ recreation of the three scenes from Deep Throat constitutes fair use” and does
not infringe upon plaintiff’s copyright. The court also dismissed Arrow’s trademark infringement and
dilution claims for reasons that are beyond the scope of this article.
In a final section, the court denied Weinstein’s motion for an award of attorney’s fees under
17 U.S.C. § 505 on the ground that, even though defendants prevailed on their fair use defense “as a
matter of law,” plaintiff’s copyright claims were not “so unreasonable as to warrant” attorney’s
fees. Although reasonable minds could differ on this point, the court has wide discretion to award or deny attorney’s fees in copyright cases.
Judge Griesa’s factorial and overall determination placed Lovelace squarely within the boundaries
of fair use for criticism, commentary and biography. On September 23rd Arrow filed a notice of appeal
seeking a reversal of the fair use determination, and on October 3rd defendants filed a notice of cross-
appeal seeking a reversal of the district court’s denial of their motion for attorney’s fees. Having
carefully analyzed the facts under the legal standards set forth by the Supreme Court in Campbell and
by the Second Circuit, inter alia, in BGA and Cariou, there does not appear to be a likelihood of reversal
on the merits.
Copyright © 2014 Robert J. Bernstein and Robert W. Clarida
Robert J. Bernstein practices law in New York City in The Law Office of Robert J. Bernstein. He is a frequent author and lecturer on copyright law and litigation, an Honorary Trustee and past President of the Copyright Society of the U.S.A., a member of the Copyright and Literary Property Committee of the New York City Bar Association, and formerly served as Chairman of the Copyright Law Committee of the American Intellectual Property Law Association and as a member of its Board of Directors
Robert W. Clarida is a partner in the New York law firm of Reitler, Kailas & Rosenblatt, LLC and speaks and writes frequently on copyright law. He is the author of the recent Copyright Law Deskbook (BNA), co-author, with Thomas Kjellberg, of “Recent Developments in Copyright,” a review of copyright decisions delivered each year at the annual meeting of the Copyright Society of the U.S.A., and is a past Trustee of the Copyright Society and former chair of the Copyright and Literary Property Committee of the Association of the Bar of the City of New York.
 Arrow Productions, LTD. v. The Weinstein Company LLC, No. 13-5488, ___ F.Supp.2d___, 2014 WL 4211350 (S.D.N.Y. August 25, 2014) (“Arrow”).
 Id., 2014 WL 4211350 at *10.
 Campbell v. Acuff–Rose Music, Inc., 510 U.S. 569, 578 (1994). (“Campbell”) (quoting U.S. Const., art. I, § 8, cl. 8).
 Id., at 579 (citing Leval, at 1111). Notwithstanding Campbell’s emphasis on transformative use, a recent, and aberrational, Seventh Circuit decision mischaracterized Campbell as merely “mentioning” transformative use, and declined to apply that concept in its fair use analysis. Kienitz v. Sconnie Nation LLC, No. 13-3004, ___ F.3d ___, 2014 WL 4494835 (7th Cir. September 15, 2014).
 386 F.Supp.2d 324 (S.D.N.Y. 2005), aff’d 448 F.3d 605 (2d Cir. 2006).
 714 F.3d 694 (2d Cir. 2013).
 Arrow, supra, 2014 WL 4211350 at *5 (citing Cariou, supra, 714 F.3d at 705) (internal quotation marks omitted).
 Id. at *6.
 Id. (citation and internal quotation marks omitted).
 Id. (citation and internal quotation marks omitted).
 Id. at *7, n.2 (citing BGA, supra, 386 F.Supp.2d at 328) (internal quotation marks omitted).
 Jacobellis v. Ohio, 378 U.S. 197 (1964) (Potter, J., concurring).
 Arrow, supra, 2014 WL 4211350 at *10.