Is it Fair Use?

We haven’t played Is it Fair Use? since we started the IP Breakdown (though we had several editions on our firm site). If you aren’t familiar, it’s the fast-paced game that’s sweeping the nation13Very slowly. where I present you the facts of a recently decided copyright or trademark case, and you guess how the court ruled on the issue of fair use. You’re usually better off just flipping a coin than trying to work through any kind of analysis, because fair use is usually pretty much unpredictable.14Which is one of the points of the game.

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I’d rather be writing about this Lovelace, Ada Byron, Countess of Lovelace.


This edition of Is it Fair Use features the notorious pornographic feature Deep Throat, which is best known for lending its name to Bob Woodward and Carl Bernstein’s crucial inside anonymous source during their Watergate muckraking. It also resulted in what I believe is the only conviction of an actor for criminal obscenity15Harry Reems was convicted, but the conviction was overturned on appeal. Others were not so lucky.

The Linda Lovelace Puzzle

Confession: I’ve never seen the movie, nor have felt any compelling reason to do so. It’s sometimes called a “classic,” by which I think people mean it’s a terrible movie but had a certain cultural impact. And I’m old enough to remember its cultural impact. Along with a few other pornographic movies from the early 1970’s, it helped take pornography out of the back alleys and into, if not mainstream theaters, a better class of theaters. People whose experience of pornography never went beyond “gentlemen’s magazines” were now talking about it openly. Deep Throat helped make pornography semi-legitimate.
The backlash against this semi-legitimizing of pornography came in the mid–1980’s, when the Reagan administration formed the “Meese Commission” to hold hearings about the deleterious effects of pornography.16After roughly 200 witnesses and six public hearings, the resulting 1960-page “Meese Report” concluded that pornography was a bad thing. Its main recommendation was, in essence, forms of censorship through federalization of obscenity laws. One of the most celebrated witnesses before the Meese Commission was Linda Lovelace, the star of Deep Throat. She had long since left behind her career in pornography, having found (or re-found) God.
She testified that she was formed to perform the sex acts in the movie against her will: “When you see the movie Deep Throat, you are watching me being raped. It is a crime that the movie is still showing; there was a gun to my head the entire time.” Some of her former co-workers flat-out disbelieved her, and some of her accusations seemed exaggerated for effect (e.g., the gun reference above)17Then again, Lovelace might have felt compelled to exaggerate, in order to get a bunch of old men to understand what it was like to be a woman in an abusive relationship. This was 1986, remember.—but it is impossible not to conclude that she was, at a minimum, in an abusive relationship with the men who made her pornographic films, and that she might not have made those films but for the abuse.
Lovelace thus became a kind of Rorschach test for how you felt about pornography. Was she young woman with no inhibitions (perhaps rejecting her strict religious upbringing) who later (re-)found God and rejected her past life? Or was she always the good religious girl whose descent into pornography was coerced every step of the way? Yet, her life was clearly more complex than this—she was something more than a Rorschach test—and her own autobiographies and statements about herself and those of her former co-workers in pornography are maddeningly inconsistent.18According to her supporters, this was itself evidence of trauma.

Inferno Self-Immolates

Lovelace is, in short, a viable subject for a movie biography. There have been two attempts to make one. The first, Inferno, was originally supposed to star—I’m not making this up—Lindsay Lohan as Lovelace. It got far enough along in production to have a draft script, set cast (once the Lohan thing was resolved) and director, and it had even obtained a license for Deep Throat. By all accounts, however, Inferno was never a sure thing, which is the way with most movie projects, and it seems to have sputtered out by 2012. It may simply never have recovered from having to replace Lohan, or its producer may not have been persuasive enough to secure financing, or it may have been overtaken by the other Lovelace biopic, Lovelace. Financiers might have reasonably concluded that the market could stand only one Lovelace biopic, and once Lovelace got momentum, they decided not to back what was fast becoming the “other” Lovelace biopic.
Lovelace’s production started later than Inferno’s, but its route to completion was a lot smoother than Inferno’s. For one thing, it didn’t try to hire Lohan. It never even asked for a license for Deep Throat. It also does not appear to have been a very good movie. The main artistic problem appears—ironically and sadly, if you think about it—that the Lovelace character is completely flattened by the aggressive, abusive men around her. It appears to have been more about the men who abused her than about her.19Which is about par for the course in how Hollywood treats women, really. In short, it fails as a biopic.
Deep Throat appears to be the fulcrum of Lovelace. This isn’t terribly surprising because it might well have been the fulcrum of Lovelace’s own life, and, at any rate, it was the thing (along with her Meese Commission testimony) Lovelace was best known for.20This isn’t to say that putting Deep Throat at the center of the movie was the best artistic decision, especially if doing so distorted Lovelace’s own biography. But it’s also fair to say that it was an artistic decision.

Lovelace’s Use of Deep Throat

Lovelace re-created three scenes from Deep Throat.21As an aside, it makes no difference whether the producers of Lovelace used actual footage from Deep Throat or re-created those scenes. Both are infringing acts. In two of the re-created scenes, the scenes aren’t merely re-created. Instead, they are re-created as part of a broader scene showing the historical act of making those scenes. Thus, the camera shows not only the re-created scenes (from a different point of view than what Deep Throat used), but also the reactions and actions of the crew (e.g., the director telling Lovelace “Just drive and pretend we’re not here, okay?”).
The other re-created scene is shown as part of a screening of the film, and Lovelace watches it with Playboy magnate Hugh Hefner.22Why re-create the scene, instead of using original footage, if doing so doesn’t avoid infringement? Probably to get the actors’ appearances to match up. It would look odd if the Lovelace on the screen looked nothing like the one watching it. The scene intercuts between the Deep Throat re-creation and the conversation between Lovelace and Hefner, and also portrays the audience’s reaction to the scene.
The owner of the copyright in Deep Throat, Arrow Productions, was annoyed enough to sue those involved with making Lovelace. From its viewpoint, it had licensed the Deep Throat copyright to the producers of Inferno, only to see that movie flounder while another, unlicensed biopic, flourished.23And by “flourished,” I mean it actually got made and distributed—an achievement in itself—not that anyone went to go see it or enjoyed it. To Arrow Productions’ mind, the two facts were connected: Lovelace overtook Inferno precisely because it was unlicensed. Specifically, in its Complaint24Paragraph 44., Arrow Productions alleged:

However, in or around 2010, the entertainment press began reporting that Defendant Avi Lerner and others were working on a similar film about Linda Boreman [Lovelace’s real name], with the working title Lovelace. Once the press started to report on Lovelace, funding for Inferno dried up. When it comes to the movie industry, the spoils usually go to the swift and, as a result, people are rarely willing to fund a film that is going to arrive at theatres shortly after another film on the same subject.

You have enough facts to go on now, especially since the defendants moved for “judgment on the pleadings.” This means the court must take every plausible fact alleged in the Complaint (which you also have access to) as true, even though later development of the facts might show many of those alleged facts to be false. Review the four factors, and pay particular attention to “transformative use” and “effect on the marketplace,” both of which were key to Cariou v. Prince.
When you’ve made your guess about whether Lovelace’s use of re-created scenes from Deep Throat is fair use or not, check to see if the judge agreed with you.

Rick Sanders

Rick is the litigation half of Aaron & Sanders, PLLC; and, from 2012 to 2014, an adjunct professor at Vanderbilt University Law School, where he was teaching Copyright Law. Vandy also happens to be where he got his law degree in 2000. After graduation, he practiced at a major intellectual-property law firm in Silicon Valley for a few years. He returned to Nashville in 2004, where he worked for a large Nashville firm, practicing as much intellectual-property law as he could, but also a lot of commercial law. He left that firm in 2011 to start Aaron & Sanders with Tara Aaron, so he could practice intellectual-property law full time and work with start-ups and other non-institutional clients.