In Arrow Productions, Ltd. v. The Weinstein Company LLC, et al., No. 13 Civ. 05448, 2014 WL 4211350 (S.D.N.Y. Aug. 25, 2014), Judge Griesa undertook the judicial task of determining whether Defendants’ unauthorized recreation of scenes from Arrow’s copyrighted film constitutes fair use by viewing “all that is necessary” to make such determination – scenes from the pornographic film descriptively titled Deep Throat, and the film that allegedly copied them, Lovelace. All in a day’s work.
Arrow is the copyright owner of the well-known pornographic film Deep Throat (1972) starring a young Linda Lovelace. Deep Throat is about a woman’s journey to achieving sexual satisfaction, and is replete with sexual scenes and nudity. Defendants’ film, Lovelace (2013), is a biographical account of Linda Lovelace. Lovelace documents how Linda Lovelace’s formative years in the pornography business, including her experience filming Deep Throat, and her emotionally abusive marriage to Chuck Traynor led her to become an outspoken critic of pornography later in life. Lovelace does not contain any pornographic scenes or nudity.
Arrow filed suit for copyright infringement, alleging that Defendants copied three scenes from Deep Throat in Lovelace including word-for-word dialogue, camera angles, lighting, costumes and settings. (This comment will focus on the copyright infringement claim, but it is worth mentioning that Arrow brought trademark infringement claims of its “Deep Throat” and “Linda Lovelace” marks, all of which failed as a matter of law on grounds of insufficient pleading.) Following Arrow’s unsuccessful attempt to enjoin the distribution of Lovelace two days before its initial release date, Defendants moved for judgment on the pleadings, contending that their recreation of the Deep Throat scenes was a fair use under 17 U.S.C. § 107.
After indulging in a detailed comparison of the three contested scenes as depicted in each film, highlighting thematic differences, variations in the timing and the relative importance of the scenes, and noting the snippets of dialogue common to each, the Court turned to Defendants’ fair use defense. The Court weighed the four factors enumerated in Section 107 of the Copyright Act – (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used, and (4) the effect on the potential market of the work – and ultimately determined that Defendants’ recreation of the three Deep Throat scenes constituted a fair use as a matter of law.
The first statutory factor is considered (at least by the Second Circuit) to be the “heart” of the fair use inquiry, and the sheer length of the Court’s analysis of the purpose and character of Defendants’ use demonstrates as much. This factor is two-pronged, asking whether use of the work is transformative and also whether it is commercial. A work is transformative if it “adds something new, with a further purpose or different character, altering the first with new expression, meaning or message.” Campbell v. Acuff-Rose, 510 U.S. 569, 579 (1994). In the Court’s view, it was Defendants’ transformative use of the Deep Throat scenes that tips the scale resoundingly in favor of fair use. The Defendants did not simply display clips of the Deep Throat scenes, but rather incorporated reenactments of those scenes into Lovelace to provide their own commentary and criticism. Whereas in Deep Throat, the scenes are pornographic, in Lovelace, the scenes are juxtaposed against the behind-the-scenes reality of Linda Lovelace’s innocence and apprehension, and are used to expose the development of her abusive marriage. Rounding out the first factor, that Lovelace commercially exploited the Deep Throat scenes was of little significance.
The second factor – the nature of the copyrighted work – favored Arrow because Deep Throat is a creative and expressive work. However, the Court deemed this factor of little importance in the context of a transformative use and found it rarely changes the outcome of the analysis when all four factors are weighed together.
Under the third factor, the Court took a quantitative and qualitative look at the amount and substantiality of the scenes Defendants used in relation to Deep Throat as a whole. This factor favored Defendants because they copied no more than necessary – only four minutes of a sixty-one minute film – to achieve their creative purpose. Moreover, even with an R rating, it would be impossible for Defendants to copy the core of Deep Throat – i.e., explicit pornography, and one pornographic act in particular.
Lastly, the Court found that the fourth factor – the effect on the potential market of the work – favored Defendants. Lovelace could not supplant the demand for Deep Throat as the two films have entirely different subjects – simply put, a consumer seeking to view pornography will probably not find a critical biographical film to be a suitable alternative. And, despite Arrow’s allegation that it had recently licensed Deep Throat for use in a film that was to tell the story of Linda Lovelace’s life, the Court concluded that Lovelace did not harm the market for Deep Throat or the market for derivative works.
In summary, this case illustrates the increasing emphasis on the first factor of the fair use analysis, particularly whether the use is “transformative.” Under the set of facts before it, the Court’s conclusion that Defendants’ use of the Deep Throat scenes is “transformative” is not all that controversial. The case underscores the point that when an artistic work aims to fairly describe, contextualize, or even criticize another work, particularly for the purpose of telling a very different story, courts will not hesitate to dismiss a copyright claim at a very early stage.