Answer To Complaint in Arrow Productions v. The Weinstein Company

Tom J. Ferber (tferber@pryorcashman.
com
Benjamin S. Akley (bakley@pryorcashman.com)
PRYOR CASHMAN LLP
7 Times Square
New York, New York 10036
(212) 421-4100
Attorneys for Defendants
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ARROW PRODUCTIONS, LTD.,
Plaintiff,
V .
THE WEINSTEIN COMPANY LLC, RADIUS-
TWC, MILLENNIUM FILMS, INC., NU
IMAGE, INC., ANIMUS FILMS, LLC,
UNTITLED ENTERTAINMENT, INC.,
ECLECTIC PICTURES, INC., AVI LERNER,
LAURA RISTER, and JOHN DOES 1 through 100;
13 CV. 5488 (TPG)
ANSWER
Defendants.

Defendants The Weinstein Company LLC ("TWC") , Millennium Films, Inc.
("Millennium") , Nu Image, Inc. ("Nu Image") , Animus Films, LLC ("Animus") , Untitled
Entertainment, Inc. ("Untitled") , Eclectic Pictures, Inc. ("Eclectic") , Avi Lerner ("Lerner") and
Laura Rister ("Rister") (collectively "Defendants") , by and through their attorneys, Pryor
Cashman LLP, as and for their Answer to the Complaint of plaintiff Arrow Productions, Ltd.
("Plaintiff') , allege as follows:
1. Deny the allegations in paragraph 1 of the Complaint, except to admit that one or
more of the Defendants have produced and/or are distributing Lovelace in the United States.
Case 1:13-cv-05488-TPG Document 5 Filed 09/17/13 Page 1 of 24
2. Deny the allegations in paragraph 2 of the Complaint, except to admit that
Defendants used the title "Lovelace" without license or permission from Plaintiff and aver that
no such license or permission is required as a matter of law.
3. Deny knowledge or information sufficient to form a belief as to the truth of the
allegations in paragraph 3 of the Complaint, except to deny that Defendants have infringed any
of Plaintiffs rights and aver that it is unclear what Plaintiff means by its reference to "the Deep
Throat brand."
allegations in paragraph 4 of the Complaint.
5. Deny the allegations in paragraph 5 of the Complaint, except to admit that TWC
is a Delaware limited liability company with offices at 375 Greenwich Street, New York, NY
10013, and to allege that Radius-TWC is an unincorporated division of TWC, and that TWC is
the U.S. distributor of Lovelace through its Radius-TWC imprint.
6. Deny the allegations in paragraph 6 of the Complaint.
7. Deny the allegations in paragraph 7 of the Complaint, except to admit that Nu
Image is a California corporation with offices at 6423 Wilshire Boulevard, Los Angeles,
California 90048.
8. Admit the allegations in paragraph 8 of the Complaint.
Untitled Entertainment, Inc. was one of the entities which produced Lovelace.
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Lerner resides in California, is the Chairman and founder of Millennium and Nu Image, and is an
executive producer of Lovelace.
12. Deny the allegations in paragraph 12 of the Complaint, except to admit that Rister
serves as the head of production at Untitled and that she is one of the producers of Lovelace.
allegations in paragraph 13 of the Complaint, except to deny that there has been any copyright or
trademark infringement.
allegations in paragraph 14 of the Complaint, except to deny that there has been any copyright or
trademark infringement.
allegations in paragraph 17 of the Complaint
18. Deny the allegations in paragraph 18 of the Complaint, except to admit that the
Court has personal jurisdiction over TWC and Untitled.
allegations in paragraph 20 of the Complaint, except to admit that Deep Throat was reported to
have enjoyed enormous commercial success for a "hard core" pornographic film when it was
released in 1972, that it was described as "porno chic" in a 1973 New York Times Magazine
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article which was subtitled "Hard-core' grows fashionable and very profitable," and which
described it as "offer[ing] viewers a sense of humor and story line" and "attempt[ing] some
comedy" (attached as Exhibit A) , that it was also called "pornographic chic" by film critic Roger
Ebert (see Exhibit B) , that it has been described as "the most famous and profitable smut movie
in history," that its success and place in American popular culture was both reflected and, upon
information and belief, enhanced by reports that numerous celebrities had seen it, including
without limitation Johnny Carson, Mike Nichols, Sandy Dennis, Ben Gazzara, Jack Nicholson,
Truman Capote, Vice President Spiro Agnew, Warren Betty, Nora Ephron, Shirley MacLaine,
Bob Woodward and Sammy Davis Jr. (see Exhibits A, C and R) , and its success was reported by
the news media, including Walter Cronkite, as reflected in a clip of news footage included early
in Defendants' film, Lovelace.
allegations in paragraph 22 of the Complaint regarding how Deep Throat was filmed and
whether Plaintiff remains in possession of the intemegative, and denies the remaining allegations
of said paragraph regarding what is done after a motion picture is filmed because it refers to
outdated practices.
4
allegations in paragraph 27 of the Complaint, except to respectfully refer the Court to Exhibit B
to the Complaint, which is a copy of the registration for the Deep Throat motion picture in the
name of Plymouth Distributors, Inc., and note that there are no exhibits to the Complaint
documenting an assignment of such registration to Plaintiff.
allegations in paragraph 28 of the Complaint, except to respectfully refer the Court to true copies
of the referenced trademark registration for the content thereof and to aver that "deep throat" is
used other than as a trademark and in ways that do not refer to the film entitled "Deep Throat,"
and, by way of example, respectfully refer the Court to the 2002 United Press International
article entitled "Linda Lovelace dies in car crash" (Exhibit C, at p. 5) , which stated "fflor the
generation born after 'Deep Throat,' the term had entered the vernacular as a synonym for oral
sex and the name of several cocktails" and to the 2009 Guardian article entitled "FBI tried to
stop Deep Throat porn film, files reveal" (Exhibit D) , which stated "Deep Throat is among the
most notorious porn films ever made, and its title became a cultural buzzword."
allegations in paragraph 29 of the Complaint, except to allege that the credits for Deep Throat
(Exhibit DD) identified its star as "Linda Lovelace" as "Herself," thereby telling the public that
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the name of the lead actress was "Linda Lovelace," that said actress is known to the public as
Linda Lovelace, as evidenced by:
(i) extensive media references, including The New York Times, which identified
Linda Lovelace as the "star" of Deep Throat rather than as a "character" in it (see,
e. g. , "Porno chic" article attached as Exhibit A, Roger Ebert review attached as
Exhibit B; The Nationalist article entitled "Deep Throat started a debate that still
continues 36 years on," dated Oct. 29, 2008, which referred to Linda Lovelace as
"the world's first international porn star," Exhibit E) ; The New York Times'
review of the documentary "Inside Deep Throat," entitled "A Cautionary Tale
Arguing for Freedom of Expression," dated Feb. 11, 2005 (Exhibit F) , which
stated that Gerard Damiano, the director of Deep Throat, "immortalized Linda
Lovelace";
(ii) a 2005 Los Angeles Times article entitled 'Deep Throat' Numbers Just Don't
Add Up," which stated that Deep Throat had "made Linda Lovelace a household
name" (Exhibit G) ;
(iii) various books written by said actress under the name "Linda Lovelace"
(including, without limitation, "Ordeal," the cover of which annexed as Exhibit H,
"Out of Bondage," the cover of which is annexed as Exhibit I, "The Intimate
Diary of Linda Lovelace," see Exhibit J, and "Inside Linda Lovelace," see Exhibit
K) ;
(iv) by books, articles and other materials referring to her as Linda Lovelace
because that is the name by which she was identified (see, e. g. , the cover of "The
Complete Linda Lovelace: A Deeper-Than-Deep Look at America's First Porn
6
Queen" by Eric Danville, annexed as Exhibit L; the cover of "Inside Linda
Lovelace's Deep Throat: Degradation, Porno Chic And the Rise of Feminism" by
Darwin Porter, annexed as Exhibit S; the cover of "daily girl," which features an
"Interview With Linda Lovelace!" with a cover photograph of said actress
(Exhibit T) ; the January 2001 cover of "Leg Show" magazine, identified as the
"Linda Lovelace Collector's Issue" and featuring a photograph of said actress
(Exhibit CC) ; packaging for a foreign version of Deep Throat identifying the stars
of the film as Linda Lovelace and Harry Reems, annexed as Exhibit M) ;
(v) international news media coverage reporting Linda Lovelace's 2002 death in a
car accident, which identified her as "Linda Lovelace" because that is the name
by which the public knew her (see United Press International article "Linda
Lovelace dies in car crash," Ex. C; Guardian Leader (Canada) obituary "Linda
Lovelace: Deep Throat porn star who turned against her former life," Ex. N; The
Irish Times obituary 'Deep Throat' star who helped make porn 'chic' and then
turned against it," identifying deceased as Linda Lovelace, Ex. 0) ;
(vi) a film neither produced nor licensed by Plaintiff entitled "Linda Lovelace For
President" (see materials annexed as Exhibit P) ; and
(vii) descriptions of the planned film "Inferno," which was authorized by Plaintiff
and in which Plaintiff, upon information and belief, has or had a financial interest,
which identified the subject matter of said film as "Nile story of adult film legend
Linda Lovelace" (see IMDb.com description at Exhibit U) , which stated that
Lindsay Lohan would star in said film "as Linda Lovelace" and which features a
poster for "Inferno" which says "Linda Lohan as Linda Lovelace" (see
comingsoon.net article at Exhibit V) and which describe said film as "the Linda
Lovelace biopic" (see thewrap.com article at Exhibit W) ;
and aver that it is unclear what Plaintiff means by its reference to "the Deep Throat brand."
allegations in paragraph 30 of the Complaint, except to admit, upon information and belief, that
the actress known as Linda Lovelace, who was billed as playing herself in Deep Throat and who
was known to the public as Linda Lovelace, as set forth above, was also known as Linda
Boreman, and that said actress died in 2002.
allegations in paragraph 31 of the Complaint, except to respectfully refer the Court to the
referenced trademark registrations for the content thereof and to aver that "Linda Lovelace" is
used by parties other than Plaintiff and other than as a trademark, including without limitation as
set forth in paragraph 29.
allegations in paragraph 32 of the Complaint, except to allege that Plaintiff is not the sole source
for goods bearing the name "Linda Lovelace," as set forth above.
allegations in paragraph 33 of the Complaint, except to allege that movies have been made by
parties other than Plaintiff with "Linda Lovelace" in their titles, including "Linda Lovelace For
President" (see, e. g. , Exhibit D) , which, upon information and belief, was not made by or
pursuant to licenses from Plaintiff
8
allegations in paragraph 34 of the Complaint, except to aver that it is unclear what Plaintiff
means by its reference to "the Deep Throat brand."
means by its reference to "the Deep Throat brand."
means by its reference to "the Deep Throat brand," that it is unclear how the so-called "Deep
Throat brand" could be harmed given that Deep Throat is a symbol of pornography and the
exploitation of women which it represents, that public discussions, media coverage and
government reports have described Deep Throat as having been connected to organized crime
(see Meese Commission Final Report, Ex. Q, at Q35, Q39, Q42, Q49, Q60-61; The Guardian
article entitled "FBI tried to stop Deep Throat porn film," dated June 22, 2009, which referred to
Deep Throat's "mob backers") and Linda Lovelace's performance therein as having been the
product of abuse (see Ex. D and Ex. R) (Hollywood Reporter, Feb. 8, 2013) , which quotes Linda
Lovelace as saying of Deep Throat that "[v]irtually every time someone watches that movie,
they're watching me being raped") , and that the second sentence of paragraph 37 reveals
Plaintiff's goal of misusing its purported intellectual property rights to control public discourse
and stifle debate on such subjects.
9
allegations in paragraph 38 of the Complaint, except to admit that Deep Throat and the treatment
of Linda Lovelace have been the subject of "extensive controversy," as evidenced by
innumerable litigations, which are referenced further in paragraph 40 below and in Exhibit Q,
media coverage, books, articles, including:
"Deep Throat started a debate that still continues 36 years on" (Ex. E) , which
stated, inter alia, "Linda Lovelace was regarded as the 'best advertisement' for
pornography because the mainstream appeal and acceptance of X-rated films
could be traced back to the stunning success of Deep Throat. She was the 'worst
advertisement' because she revealed later that she had been forced to appear in
the film by her abusive husband, and went on to become the heroine of the anti-
porn lobby") ;
"FBI tried to stop Deep Throat porn film, files reveal" (Ex. D) , which stated that
Deep Throat "is seen by many as a defining moment in the cultural and sexual
revolution, though others label it a cheap and nasty exercise in exploitation";
and government hearings, including without limitation Attorney General Meese's Commission
on Pornography during the Reagan Administration, the Final Report (excerpts from which are
attached as Exhibit Q) of which included, inter alia:
"Disturbing contributions from Linda Lovelace, the star of 'Deep Throat' (Ex. Q
at p. Ql, Q23, Q26, Q28) ;
A chapter on Deep Throat (id. at Q3-4) ;
A chapter about legal cases concerning pornographic films, which included
dozens of criminal cases addressing Deep Throat, in states across the nation
10
(including New York, Tennessee, Texas, California, Massachusetts, Florida,
Michigan, Pennsylvania, Colorado, Kentucky, Maryland, Illinois, New Jersey,
Missouri and North Dakota) and the U.S. Supreme Court (id. at Q6-21) ;
A chapter on the imprisonment of women coerced or held captive during the
production of porn films, which included the testimony of Linda Lovelace (who
by then went by her new married name, Linda Marchiano) , who testified that she
had been "forced through physical, mental, and sexual abuse and often at
gunpoint and threats of [sic] her life to be involved with pornography" and that
she "literally became a prisoner. [She] was not allowed out of his [i.e., her ex-
husband Chuck Traynor's] sight, not even to use the bathroom." (id. at p. Q26,
Q28) ;
Chapters on the battery and torture to which women had been subjected to coerce
their participation in pornographic films, including testimony by Linda Lovelace
describing the physical abuse to which her then-husband, Chuck Traynor, had
subjected her in connection with her performance in Deep Throat (id. at Q26,
Q28) ;
Chapters on Arrow Film and Video Co., New York, and Narcotics Distribution
(id. at Q35-44) , which described the affiliation of Louis "Butchie" Peraino and
Joseph Peraino, affiliates of a New York organized crime family, with the
production and financing of Deep Throat (id. at Q35, Q39 and Q49) as well as the
use of proceeds from it in connection with drug smuggling and distribution (id. at
Q42, Q49) .
11
Two chapters on "Organized Crime Involvement in Pornography" (Id. at Q45-65) ,
which discussed the connection between the Peraino brothers of the Colombo
organized crime family and Deep Throat director Gerard Damiano, and that
Damiano had been coerced into selling his interest in the film to Anthony Peraino
of the Colombo crime family for $25,000 (id. at Q49, Q61) ;
and allege, upon information and belief, that Linda Lovelace passed a polygraph examination
before her book "Ordeal" was published, which confirmed her allegations of abuse and coercion
by her ex-husband Chuck Traynor.
means by its reference to "protecting the cultural and economic value of the intellectual property
in Deep Throat" and "the Deep Throat brand," given that Deep Throat is a work of pornography
(as Plaintiff admits) and representative of the exploitation of women.
allegations in paragraph 40 of the Complaint, except to admit that the production and distribution
of Deep Throat was followed by dozens of "ensuing obscenity litigation[s]," as further set forth
in paragraph 38 above and the list of such cases included in the Meese Commission Final Report
(Ex. Q at Q6-16) , and demonstrates that Deep Throat has a history of being the subject of public
controversy and discussion, including the decision of the late Judge Joel J. Tyler in New York,
who in 1973 found Deep Throat to be pornographic and obscene, calling it a "feast of carrion
and squalor," "a nadir of decadence" and a "Sodom and Gomorrah gone wild before the fire,"
while stating "Oh, yes! There is a gossamer of a story line the heroine's all-engrossing search
for sexual gratification, and when all sexual endeavors fail to gratify, her unique problem is
12
successfully diagnosed to exist in her throat," adding "The alleged story lines are the faade, the
sheer negligee through which clearly shines the producer's ... true and only purpose, that is, the
presentation of unmistakably hard-core pornography," and concluded "[t]his is one throat that
deserves to be cut." (See New York Times articles dated March 2, 1973 and January 14, 2012,
attached as Exhibits X and Y, respectfully.)
allegations in paragraph 41 of the Complaint, except to aver that the third sentence thereof
demonstrates Plaintiffs efforts to misuse its purported intellectual property rights in Deep Throat
to control the content of speech concerning an important subject in American society, and that it
is unclear what Plaintiff means by its reference to "the Deep Throat brand."
allegations in paragraph 44 of the Complaint, except to admit that in or about 2010 the
entertainment press began reporting that one or more of the Defendants were working on a film
entitled "Lovelace" about the actress known as Linda Lovelace, and to allege, upon information
and belief, that development of the film project known as "Inferno" lost momentum when
Lindsay Lohan, who had been announced as its star, experienced highly publicized personal
problems which were reported to have included substance abuse issues and criminal prosecutions
(see, e. g. , Exhibit W) .
13
allegations in paragraph 45 of the Complaint, except to aver that even though Plaintiff admittedly
knew about Defendant's work on "Lovelace" in 2010, the December 15, 2010 letter by
Plaintiffs counsel to Laura Rister, and the December 12, 2010 email from Charles M. Fries to
executives at Nu Image and Millennium Films (Exhibits G and F to the Complaint, respectively)
demonstrate that Plaintiff and its licensees and/or partners made no effort to inquire into the plot
of "Lovelace" or "the extent to which the film would address Deep Throat," and that their only
interest was in threatening to misuse Plaintiff's purported intellectual property rights for anti-
competitive purposes.
allegations in paragraph 46 of the Complaint, except to aver that even though Plaintiff admittedly
knew about Defendant's work on "Lovelace" in 2010, the December 15, 2010 letter by
Plaintiffs counsel to Laura Rister, and the December 12, 2010 email from Charles M. Fries to
executives at Nu Image and Millennium Films (Exhibits G and F to the Complaint, respectively) ,
demonstrate that Plaintiffs and its licensees' only interest was in threatening to misuse
Plaintiffs purported intellectual property rights for anti-competitive purposes, and to admit that
Mr. Ramati responded to the December 12, 2010 email of Charles M. Fries annexed at exhibit F
to the Complaint as more fully set forth in the December 13, 2010 email in the same exhibit, and
respectfully refer the Court to the entirety of such email for the content thereof.
allegations in paragraph 47 of the Complaint, except to admit that counsel for Plaintiff sent a
letter dated December 15, 2010 to Laura Rister, that it sent a copy to Nu Image (as set forth at
14
Exhibit G to the Complaint) , and respectfully refer the Court to a true and correct copy of such
letter for the content thereof.
allegations in paragraph 48 of the Complaint, except to admit that counsel for Plaintiff sent the
letter dated November 11, 2011 to Avi Lerner at Millennium Films, to respectfully refer the
Court to Exhibit H to the Complaint for the content of such letter, to aver that such letter
demonstrates that Plaintiff had no interest in knowing the plot of "Lovelace" or "the extent to
which the film would address Deep Throat," and that Plaintiffs only interest was to misuse its
purported intellectual property rights for anti-competitive purposes and to stifle speech about an
important subject matter.
allegations in paragraph 49 of the Complaint, except to admit that counsel for Defendants Nu
Image and Millennium Films responded to Plaintiffs counsel's letter dated November 11, 2011,
by letter dated December 1, 2011 (Exhibit Ito the Complaint) , to aver that such letter clearly
stated that Defendant's film entitled "Lovelace" was "a biographical film about the life of actress
Linda Lovelace, including her role in the notorious film 'Deep Throat' and her subsequent
activities as an anti-pornography activist," and that said film would include "the re-creation of a
short scene from 'Deep Throat' and the brief reenactment of the filming of scenes of 'Deep
Throat," and set forth various reasons why Lovelace would not violate any of Plaintiffs
purported intellectual property rights as a matter of law.
allegations in paragraph 50 of the Complaint, except to aver that Plaintiff acknowledges in said
paragraph that it knew that Lovelace would include "the re-creation of a short scene from 'Deep
15
Throat' and the brief reenactment of the filming of scenes of 'Deep Throat' in December 2011,
but did not file this action until August 2013.
allegations in paragraph 51 of the Complaint, except to allege, upon information and belief, that
the call placed by Mr. Danville to Mr. Pistol did not seek "to license the re-enactments in
Lovelace," and to deny, upon information and belief, that Mr. Pistol left a voicemail message for
the person whose name and telephone number were given to him by Mr. Danville.
allegations in paragraph 53 of the Complaint, except to allege, upon information and belief, that
Arrow directed no request to Defendants "to procure tickets to the screening" at the 2013
Sundance Film Festival.
allegations in paragraph 54 of the Complaint, except to aver that, consistent with its
correspondence in 2010 and 2011 (Exhibits F and G to the Complaint) , Plaintiff made no effort
to obtain information from Defendants about the plot and content of Lovelace and allege, upon
information and belief, that Plaintiff could readily have obtained such information by reference
to media or word-of-mouth (see, e. g. , V ariety review of Lovelace dated January 23, 2013,
Exhibit Z, which referred, inter alia, to the film's "re-creations of 'Deep Throat' shots") , and to
note that Plaintiff knew the title of Lovelace of which it now complains in 2010.
16
56. Deny the allegations in paragraph 56 of the Complaint, except to admit that Deep
Throat is approximately 62 minutes in length and that Lovelace is approximately 92 minutes in
length.
57. Deny the allegations in paragraph 57 of the Complaint, except to respectfully
refer the Court to copies of Deep Throat and Lovelace, which are submitted as Exhibits DD and
EE hereto, respectively, for the content thereof.
EE hereto, respectively, for the content thereof, to aver that it is unclear what Plaintiff means by
its reference to "the value of the Deep Throat brand," given that Deep Throat is a pornographic
film that is an example of the exploitation of women in such films, to aver that it is impossible to
17
respond to the second sentence of such paragraph because it does not identify the actors from
Lovelace to which it refers, and to aver that the second sentence of such paragraph once again
demonstrates Plaintiffs interest in inhibiting discussion about an important social issue.
allegations in paragraph 63 of the Complaint, except to respectfully refer the Court to the entirety
of the interview from the David Letterman show referenced therein for the content thereof.
allegations in paragraph 64 of the Complaint, except to respectfully refer the Court to the entirety
of the referenced interview on The Daily Show for the content thereof.
65. Admit the allegations of paragraph 65 of the Complaint.
66. In response to paragraph 66 of the Complaint, repeat and reallege their responses
to paragraphs 1-65 as if fully set forth herein.
allegations in paragraph 67 of the Complaint, except to admit that one or more of the Defendants
had access to the film Deep Throat.
refer the Court to copies of Deep Throat and "Lovelace," which are submitted as Exhibits DD
and EE hereto, respectively, for the content thereof.
18
74. Deny the allegations in paragraphs 1-74 of the Complaint.
to paragraphs 1-74 of the Complaint as if fully set forth herein.
allegations in paragraph 77 of the Complaint, except to allege that "Linda Lovelace" is used by
parties other than Plaintiff and other than as a trademark, including without limitation as set
forth in paragraph 29.
allegations in paragraph 78 of the Complaint, except to allege that "Linda Lovelace" and "deep
throat" are used by parties other than Plaintiff and other than as trademarks, as set forth in
paragraphs 28 and 29.
allegations in paragraph 82 of the Complaint, except to deny that Defendants are violating any of
Plaintiffs rights, and except to allege that "Linda Lovelace" is used by parties other than
Plaintiff and other than as a trademark, as set forth in paragraph 29 above.
19
to paragraphs 1-88 of the Complaint as if fully set forth herein.
Lovelace is being distributed in interstate commerce, and to respectfully refer the Court to the
advertisements referenced in said paragraph, which are not identified, for the content thereof
to paragraphs 1-95 as if fully set forth herein.
allegations in paragraph 97 of the Complaint, except to deny that "Linda Lovelace" is
exclusively used by, or on behalf of, Plaintiff, as set forth in paragraphs 29 and 31-33 above.
allegations in paragraph 98 of the Complaint, except to deny, upon information and belief, that
20
"Linda Lovelace" is recognized by the American public as a sole designation for goods of
Plaintiff, and aver upon information and belief, that both "Linda Lovelace" and "deep throat" are
used by parties other than Plaintiff and other than as a trademark, as set forth in paragraphs 28
and 29.
101. Deny the allegations in paragraph 101 of the Complaint and respectfully refer the
Court to the covers of four books authored by Linda Lovelace, attached as Exhibits H, I, J and K,
as well as the book by Eric Danville (Exhibit L) , and the film "Linda Lovelace For President"
(Exhibit P) , which did not emanate from, and were not authorized by, Plaintiff.
102. Deny the allegations in paragraph 102 of the Complaint, except to allege that use
of "Lovelace" as the title of Defendant's film, and any reference by said film to Deep Throat is
incapable of "tarnish[ing]...the reputation" of Plaintiff or its alleged trademarks, both because
Deep Throat is not susceptible of tarnishment, as set forth in paragraph 37, and because Lovelace
is, inter alia, a serious work of social commentary by two multiple award-winning directors, Rob
Epstein and Jeffrey Friedman (who have won two Academy Awards for Best Feature
Documentary, a Film Critics Award for Best Non-Fiction Film, "The Times of Harvey Milk,"
which was selected by the Library of Congress for the National Film Registry," a Freedom of
Expression Award from the Nation Board of Review, several Peabody and Emmy Awards, and
Guggenheim and Rockefeller Fellowships) , with a respected cast, which is a film, as described in
The New York Times (Exhibit AA) , "about the chasm between public perception and private
experience" which depicts "the Linda that the world didn't see and who, even as her body
became a public spectacle, nursed her wounds in private," creating a "story [that] resembles an
21
18-century tale of sexual liberation (like the Marquis de Sade's novel, 'Juliette') that becomes a
tale of exploitation (like Sade's 'Justine) " and which ultimately "has more to do with domestic
abuse than pornography."
FIRST AFFIRMATIVE DEFENSE
106. The Complaint fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE
107. Upon information and belief, Deep Throat has fallen into the public domain and is
no longer protected by copyright.
THIRD AFFIRMATIVE DEFENSE
108. Any references to Deep Throat or the actress known as Linda Lovelace in
Lovelace, including in the title, are protected by the First Amendment.
FOURTH AFFIRMATIVE DEFENSE
109. References to Deep Throat and Linda Lovelace in Lovelace do not constitute
trademark uses, because they are not used to denote the source of Lovelace. The sources for
Lovelace are identified as the entities which produced it (Millennium Films) and/or are
distributing it (e. g. , Radius) (see the opening of Lovelace, Ex. EE, and posters attached at Exhibit
BB.)
FIFTH AFFIRMATIVE DEFENSE
110. References to Deep Throat and Linda Lovelace in Lovelace are non-actionable
nominative fair uses.
22
SIXTH AFFIRMATIVE DEFENSE
111. Plaintiff knew the title of Lovelace in 2010 and, upon information and belief,
knew or could have known about its plot and content long ago.
112. As a result of the foregoing, Plaintiff's claims are barred by laches.
SEVENTH AFFIRMATIVE DEFENSE
113. The Court lacks personal jurisdiction over defendants Animus and Rister.
EIGHTH AFFIRMATIVE DEFENSE
114. Based on the copyright registration annexed as Exhibit B to the Complaint and the
absence of any document or allegation substantiating a transfer of copyright from Plymouth
Distributors, Inc. to Plaintiff, Plaintiff lacks standing to assert a claim for copyright infringement.
NINTH AFFIRMATIVE DEFENSE
115. The reenactments in Lovelace of filming of scenes from Deep Throat are
protected by the doctrine of fair use, including without limitation as set forth at 17 U.S.C. 107.
TENTH AFFIRMATIVE DEFENSE
116. Plaintiff's claims are barred by Plaintiff's unclean hands.
FIFTH AFFIRMATIVE DEFENSE
117. Plaintiff's alleged trademarks lack secondary meaning.
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WHEREFORE, Defendants respectfully request that the Court:
(a) Dismiss the Complaint with prejudice, and award judgment to Defendants;
(b) Pursuant to 17 U.S.C. 505 and 15 U.S.0 1117, award Defendants their
costs and attorneys' fees incurred in having to defend this action; and
(c) Grant Defendants such other and further relief as the Court deems just and
proper.
Dated: September 17, 2013
New York, New York
PRYOR CASHMAN LLP
By:

Tom erber
7 Times Square
New York, New York 10036
(212) 421-4100
Attorney for Defendants
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Answer To Complaint in Arrow Productions v. The Weinstein Company

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Answer To Complaint in Arrow Productions v. The Weinstein Company

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Tom J. Ferber (tferber@pryorcashman.

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