LAS VEGAS—To paraphrase Samuel Clemens, "The reports of its death have been greatly exaggerated."
"It," of course, is the lawsuit that Arrow Productions owner Raymond Pistol has filed against The Weinstein Company and several other corporate and individual defendants for their alleged infringement of Arrow's copyrights and trademarks to the classic 1972 adult movie Deep Throat and its star, Linda Lovelace. And despite U.S. Magistrate Judge Henry B. Pitman's denial of Arrow's request for a Temporary Restraining Order (TRO) to prevent the nationwide theatrical opening of Lovelace tomorrow, the remainder of the lawsuit remains on the docket.
"You've caught us at a point where we've lost the first round," Pistol told AVN. "I really didn't think that we were going to get a TRO. TROs stopping motion pictures are highly unlikely, but we felt we needed to try because of what they were doing. We were sending them cease-and-desists and attempting to deal with them for well over a year; it isn't like we just jumped up here at the last minute. But since the judge didn't actually look at all of the footage, nor did he look at our [TRO] brief, he was basically making a 'fast-draw' decision on whether or not to stop the movie, and that's the only thing that he really was looking at."
"We didn't even actually get our hearing, you understand; this was done just as we were presenting our brief at a hearing, which was actually scheduled on Friday for yesterday, but the judge has made his decision, so it probably isn't going to do a lot of good to insist on the hearing. But since he hasn't seen all of the footage—I mean, he had seemingly had his mind made up that he wasn't going to do it [issue a restraining order], and when we entered the courtroom, he turned a bit and decided to look at the footage, and so that was something, anyway. He was going to rule against us without even having seen the footage, without having compared the two, our footage from Deep Throat and the similar footage from Lovelace, to see how much of it was extracted."
"I understand he's under a lot of pressure," Pistol continued. "This thing's supposed to come out on Friday; he has to make a quick decision, and I defend him from the standpoint that he's very much concerned about First Amendment rights and them not being abridged, so I applaud him on that. I'm a filmmaker too, you know. We had a big brief, and he didn't have time to look at it. He basically was ruling on the complaint without looking at all those secondary documents."
One thing the judge was surprised to learn, however, was that Pistol had been relying on playwright David Bertolino's account of the similarities between Deep Throat and Lovelace when his attorney filed the complaint.
"The judge in the courtroom did not understand why we had not seen the movie, even though we didn't have an ability to see the movie," Pistol explained, noting that Bertolino had attended a private screening of Lovelace in July. "Anyway, he wanted us to see the movie, so we are acquiring the movie and will be looking at it before we move forward, and what we see there will determine a little bit of what we're going to do, but basically, we're going forward if everything is as David says, which I'm sure it is."
"They're supposed to be delivering a copy to my attorney's office," Pistol added, "but he's in New York, so that makes it a bit problematic, but we'll figure out something. He's not allowed to send it out of the office, but I think we can work it out somehow."
Pistol's attorney, Evan Mandel, is also continuing to research case law to add to the arguments already set forth in Arrow's complaint.
"We're basically looking at a couple of key cases," Pistol revealed. "One was the Gerald Ford case, where he had an unpublished manuscript, and I don't remember what publication, but a publication took a few lines out of it and published them, and he sued, and because they were important lines, they found for the ex-president, so just a few lines in an unpublished manuscript was sufficient to bring victory to him. And there have been numerous cases where pirated material has been published, but on the other side, there was a case involving the Jersey Boys [musical group], and they, for their play, were screening seven seconds of Ed Sullivan introducing the band, and the Ed Sullivan owners sued the Jersey Boys because of that infringement, but the court ruled that since it was only seven seconds and inconsequential action, that that was a permissible fair use. So using that as a standard, we'll look at this footage which, it appears, will far exceed seven seconds of nondescript footage."
"We obviously have the right to amend the complaint with details like, 'Well, this scene was this many seconds and it was here and it had these lines in it,'" Pistol continued. "According to David, they used the doctor's office scene which was the turning point and the groundbreaking scene where she was a dissatisfied, unhappy woman and found out what her problem was, and after the office visit where she had her first climax and she goes whistling off to work the next day as a sex surrogate and lived happily ever after, so that was the turning point scene, and they apparently used that. By the same token, Dolly Sharp sitting on the counter, saying 'Do you mind if I smoke while you eat?' was also a famous line, and they apparently used that, so they didn't use inconsequential stuff, and they appear to have used considerably more than seven seconds, so I think the suit's well grounded."
But part of the complaint was that Arrow's copyrighted/trademarked properties would be harmed by allowing the public to hear claims that Linda Lovelace was abused and even coerced into playing her role in the movie, and AVN asked Pistol to comment on that.
"I can't stop the damage at this point, probably, because if we try to appeal, we wouldn't be able to get into court before Friday," he sighed. "So the bottom line on it is, we're just going to have to figure out all the players, figure out the damages, and go for the monetary punishment; that's all we can do."
What about asking Lovelace's producers to rein in their actors, who've consistently cast aspersions on both the movie and Linda Lovelace herself, as noted here?
"Well, I believe in the First Amendment, and they've got a right to say what they want to say," Pistol replied. "I wouldn't stop them if I could."
But all that bad publicity for Deep Throat and its star may become an issue if Arrows wins the suit and the court needs to determine the damages the company has suffered.
"Yeah, it could," Pistol said, adding, "You know, I hate lawsuits, and I've been involved in enough of them, but I guess it's the nature of the business."