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Published by Keith Pearson

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Published by: Keith Pearson on Aug 09, 2013
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1D87narrc1 UNITED STATES DISTRICT COURT1 SOUTHERN DISTRICT OF NEW YORK2 ------------------------------x23 ARROW PRODUCTIONS, LTD.,,34 Plaintiff,45 v. 13 Civ. 5488 (TPG)56 THE WEINSTEIN COMPANY LLC, et6 al.,77 Defendants.8 t8 ------------------------------x99 New York, N.Y.10 August 7, 201310 3:40 p.m.1111 Before:1212 HON. THOMAS P. GRIESA,1313 District Judge1414 APPEARANCES1515 MANDEL BHANDARI LLP16 Attorneys for Plaintiff16 BY: EVAN MANDEL17 RISHI BHANDARI17 ROBERT GLUNT18 BENJAMIN DELSON1819 PRYOR CASHMAN19 Attorneys for Defendants20 BY: TOM J. FERBER202122232425SOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300
2D87narrc1 (In chambers)2 THE COURT: Let the record show we have had maybe 203 or so minutes of off-the-record discussion in connection with4 an application for a TRO and preliminary injunction to prevent5 the release of a film produced by the defendants called6 Lovelace. We have had a discussion of the claim of the7 plaintiff that this film infringes their rights in a film made8 some years ago called Deep Throat, a very famous film.9 We didn't have a reporter. We are not going to repeat10 all the discussion before the reporter came, but I thought that11 we should have a reporter certainly for any ruling I make.12 Plaintiffs, please don't repeat everything you have13 said, but what is the summary of your argument and the summary14 of the defense argument. Mr. Mandel15 MR. MANDEL: Thank you, your Honor.16 Very briefly, Lovelace the film that we are seeking to17 stop the release of, infringes upon both the copyrights and the18 trademarks of Deep Throat, my client's film. There is no19 question that very significant portions of Deep Throat are20 copied in Lovelace. It is the three most significant scenes in21 Deep Throat that are copied in Lovelace. It is the kitchen22 scene, the physician's office scene, and the opening scene23 which sets up the entire movie. It is also the trademarks24 Lovelace and Deep Throat.25 As far as I can tell, when I say it's copied,SOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300
3D87narrc1 Mr. Bertolino's affidavit establishes that the dialogue is2 copied, the costumes are copied, the lighting is copied, the3 entire film is copied, the only difference being that Lovelace4 is less explicit than Deep Throat.5 There are four reasons why the plaintiff will be6 irreparably harmed in the absence of an injunction.7 First, damages in this case are impossible to8 calculate, absolutely very difficult to calculate. Perhaps9 impossible is too strong a word. This is not a simple matter10 of what is a license in this film worth. Although Arrow is11 routinely approached for licenses, those licenses are almost12 always for documentaries. There have only been three13 situations --14 THE COURT: Arrow being the plaintiff?15 MR. MANDEL: Yes.16 -- Arrow the plaintiff was ever willing to consider a17 license for a work of fiction for a film based on fiction. At18 the time the defendants started shooting Lovelace, the19 plaintiff was working on a competing film and that competing20 film was shut down the minute Lovelace started shooting.21 It will be very difficult to calculate how much in22 damages the plaintiff would have had received had it been able23 to make that film. Damages in this case are extremely24 complicated.25 The second reason there is irreparable harm is thatSOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300

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