1 1 1 2 2 3 3 4 4 5 5 6 6 7 7 8 8 9 9 10 10 11 11 12 12 13 13 14 14 15 15 16 16 17 17 18 18 19 19 20 20 21 22 23 24 25 D87narrc UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x ARROW PRODUCTIONS, LTD.

,, Plaintiff, v. THE WEINSTEIN COMPANY LLC, et al., Defendants. t ------------------------------x New York, N.Y. August 7, 2013 3:40 p.m. Before: HON. THOMAS P. GRIESA, District Judge APPEARANCES MANDEL BHANDARI LLP Attorneys for Plaintiff BY: EVAN MANDEL RISHI BHANDARI ROBERT GLUNT BENJAMIN DELSON PRYOR CASHMAN Attorneys for Defendants BY: TOM J. FERBER 13 Civ. 5488 (TPG)


2 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (In chambers) THE COURT: Let the record show we have had maybe 20 or so minutes of off-the-record discussion in connection with an application for a TRO and preliminary injunction to prevent the release of a film produced by the defendants called Lovelace. We have had a discussion of the claim of the plaintiff that this film infringes their rights in a film made some years ago called Deep Throat, a very famous film. We didn't have a reporter. We are not going to repeat all the discussion before the reporter came, but I thought that we should have a reporter certainly for any ruling I make. Plaintiffs, please don't repeat everything you have said, but what is the summary of your argument and the summary of the defense argument. Mr. Mandel MR. MANDEL: Thank you, your Honor. Very briefly, Lovelace the film that we are seeking to stop the release of, infringes upon both the copyrights and the trademarks of Deep Throat, my client's film. There is no question that very significant portions of Deep Throat are copied in Lovelace. It is the three most significant scenes in Deep Throat that are copied in Lovelace. It is the kitchen scene, the physician's office scene, and the opening scene which sets up the entire movie. It is also the trademarks Lovelace and Deep Throat. As far as I can tell, when I say it's copied, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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3 D87narrc Mr. Bertolino's affidavit establishes that the dialogue is copied, the costumes are copied, the lighting is copied, the entire film is copied, the only difference being that Lovelace is less explicit than Deep Throat. There are four reasons why the plaintiff will be irreparably harmed in the absence of an injunction. First, damages in this case are impossible to calculate, absolutely very difficult to calculate. Perhaps impossible is too strong a word. This is not a simple matter of what is a license in this film worth. Although Arrow is routinely approached for licenses, those licenses are almost always for documentaries. There have only been three situations -THE COURT: Arrow being the plaintiff? MR. MANDEL: Yes. -- Arrow the plaintiff was ever willing to consider a license for a work of fiction for a film based on fiction. At the time the defendants started shooting Lovelace, the plaintiff was working on a competing film and that competing film was shut down the minute Lovelace started shooting. It will be very difficult to calculate how much in damages the plaintiff would have had received had it been able to make that film. Damages in this case are extremely complicated. The second reason there is irreparable harm is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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4 D87narrc the plaintiff will lose crucial intellectual property. We are talking about a blockbuster film that made hundreds of millions of dollars and we are talking about the most important parts of that film. It is iconic in a cultural sense. It changed the way Americans see pornography and the right to control that intellectual property is very, very difficult to value. It is critical that the plaintiff not be deprived of that right. Third, consumers are going to be confused. This is where the copyright claims get tied in with the trademark claims. The name Lovelace has been trademarked by my client and misappropriated by the defendant. The character, which is the subject of a copyright, that character has been misappropriated by the defendant's film, and the actual scenes have been appropriated. So consumers are going to believe that it must be the owners of Deep Throat somehow approved of this film because so much of this film borrows from Deep Throat. It would be impossible for this intellectual property to wind up in a film without obtaining a license. So consumers will be confused. Finally there is a First Amendment right, of course, not to make a movie using your intellectual property. If there is no injunction here, the defendants will obtain the right to speak and the right to force the plaintiff to speak without giving the plaintiff the right to exercise its option not to speak. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

5 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. FERBER: To summarize very quick. THE COURT: Mr. Ferber. MR. FERBER: Yes. I'm Tom Ferber for most of the defendants, including -- actually, I should put that in the record, including the Weinstein Company, Radius-TWC, Millennium Films, New Image and Ecletic Pictures and Avi Lerner. I may be later representing the couple of remaining defendants, but I don't have that authority yet. The defendants' film Lovelace is a serious film. It's not pornographic. It is a biographical film that depicts the exploitation of the woman who became known as Linda Lovelace by her husband and others in the porn industry and how she was coerced and abused into being a pornographic actress and staying in that business for some time, and the things that later caused her to become an antipornography advocate. The film is, to the extent it reenacts, it does not use footage as Mr. Mandel was suggesting before we went on the record, it does not use footage. It reenacts, as do other films that show films being made, a film within a film, like My Week with Marilyn and I believe others, the filming of a couple of short scenes. I believe it is something like 200 or slightly over words of the script of Deep Throat -- this is what I am informed, I have not seen the film -- and perhaps three dozen very, very short lines of dialogue. The film was done with the cooperation and support of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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6 D87narrc Ms. Lovelace's children and her estate, Gloria Steinem as well as Ms. Lovelace's attorney Catherine MacKinnon. The directors, Rob Epstein and Jeffrey Friedman, are Academy Award winning documentarians for subjects ranging from Harvey Milk to Allen Ginsberg to the AIDS crisis and life for the gay and lesbians in America. They've won Peabody and Emmy awards. They have had stuff put in the National Film Registry. I believe the complaint makes it clear that this case is being brought for anticompetitive purposes and to suppress public discussion. It acknowledges that Deep Throat was, as it puts it at the beginning of the complaint, a watershed moment for American culture that helped change American mores regarding pornography. Yet paragraphs 37, 40 and 42 through 44 make it clear that plaintiff is trying to protect, I should say use its intellectual property rights not as a shield, as then Judge Sotomayor once said in a case I was in, but as a sword against competition. Noting in paragraph 44 in the complaint they say, once in 2010 -- we'll get to the delay -- the industry press started talking about Lovelace the funding for their competing project dried up, which as I said is not the defendants' problem. Paragraphs 3, 37 through 39 and 62 to 64 also make it clear that they are trying to impede public debate by controlling who can depict Ms. Lovelace's life and the filming SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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7 D87narrc of Deep Throat and its place in American popular culture, which, as Mr. Mandel just said repeatedly, is iconic. I discussed with the judge before we went on the record the obvious First Amendment protection that motion pictures enjoy and I cited to the Hicks v. Casablanca case in the Southern District in 1978, involving the film Agatha and the Valentino case -THE COURT: Let's not recite law. MR. FERBER: OK, your Honor. With respect to the copyright claim, I noted that the complaint anyway -- I have not read all the papers -- the complaint, which I got last night, shows no chain of title. It shows copyright registrations in other parties' names. THE COURT: Let's not get into that. MR. FERBER: I explained the reasons why I believe that the use of the reenactments of those few lines of dialogue showing the scenes being shot, not the scenes themselves as the complaint says, it is a film within a film, is transformative. THE COURT: What do you mean by that? MR. FERBER: Lovelace shows Linda Lovelace and other actors Harry Reems, etc., and Hugh Hefner is portrayed, as they went through historical events. A couple of those events are filming of scenes within Deep Throat. The scenes that were the scenes that changed American popular culture's view of pornography. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

8 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: When these are shown in your film, is it somebody with a camera? Is it the scene? MR. FERBER: I am told you literally see, for instance, the most famous scene, you see the producers and directors sitting around. You see cameramen, and then you see the people playing the actors -THE COURT: Let me interrupt. I didn't think this was necessary, but it is absolutely necessary for me to see what you are talking about from Deep Throat and see what you are complaining about, at least in the defendants' film. I can't make any decision without seeing that. When can I see it? MR. FERBER: Your Honor, I brought the only DVD that I have gotten and have not even seen yet with me. I can leave it with the Court as long as it's not made publicly available. I have somewhere here an e-mail which will enable me to guide your law clerk and the Court, and a time clock to the scenes that we think they are referring to take place. MR. MANDEL: We think it is an excellent idea for your Honor to see it. We, of course, would like a copy as well. MR. FERBER: Which I'm trying to get for tomorrow form. The time clock burned out. THE COURT: There are all kinds of ways to view films. Have you got a video? MR. FERBER: I have a DVD, your Honor, one DVD I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

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9 D87narrc wasn't expecting to have. It was a surprise to me. MR. MANDEL: And we have DVDs for everyone of our film. THE LAW CLERK: Would you like to do it in the courtroom? THE DEPUTY CLERK: I will have it brought here, Judge a player and a monitor. MR. FERBER: Should I continue, your Honor? THE COURT: Let's take a little break. (Recess) (Video played) THE COURT: What are we seeing? MR. MANDEL: This is the opening scene that we were referring to earlier, your Honor. We are going to watch three scenes. That is Ms. Lovelace. It's Ms. Boreman. The character's name is Lovelace. THE COURT: I thought we were going to see three scenes of this and three scenes of theirs. MR. MANDEL: That is correct, your Honor. This is the first scene. (Video played) THE COURT: For heaven's sake, do we have to sit here forever and look at a highway? MR. MANDEL: My hope, your Honor, is that in total you will see less than ten minutes of footage of this film. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

10 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: OK. MR. MANDEL: The second relevant scene is the one immediately following this one. THE COURT: OK. MR. MANDEL: This is where the second scene begins, your Honor. THE COURT: OK. MR. MANDEL: That is one of the film's celebrated lines. THE COURT: What is that? I couldn't even understand it. MR. MANDEL: I believe the line was, "Mind if I smoke while you're eating." MR. BHANDARI: I think there is a third scene after that. Should we watch the first two scenes of the movie because we've got to find the third scene? It is not immediately -MR. MANDEL: I think we can just fast forward. MR. FERBER: You will find the scenes in the movie are very limited. MR. MANDEL: Just skip to the next thing. Just trust me on this one. MR. BHANDARI: OK. MR. MANDEL: Rewind a little bit. This is the scene. MR. FERBER: The doctor scene? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

11 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MANDEL: I believe so. MR. BHANDARI: I can only jump forward and backwards. (Video played) MR. MANDEL: Why don't you pause it for a second. What we are skipping, your Honor, is she explains to her friends and others that she is having trouble achieving sexual satisfaction and a friend recommends that she see a sex therapist. The physician's office scene is the scene where she takes the friend's advice and goes to see the sex therapist. THE COURT: All right. (Video played) MR. BHANDARI: Is this where it would end? We can come back to it. MR. MANDEL: Why don't we fast forward. I have no idea if that is the end of the scene. MR. BHANDARI: Why don't we see the other movie. If there is more that is in Deep Throat, we will find the sections. THE COURT: Let's see the same kind of thing in the other one. THE LAW CLERK: Are there chapters built in with respect to each scene? MR. FERBER: I am going to tell you what I was told, period where we might find what you are referring to within it, even though it may only be off and on with that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

12 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 film. THE COURT: Let's see the kind of depiction in your Can't we do that? I thought we could. THE LAW CLERK: I will allow you do it. MR. FERBER: You can put it in. THE LAW CLERK: All right. Just let me play through? MR. FERBER: Yes. (Video played) THE COURT: Where are the things that infringe? MR. FERBER: I haven't seen this. I am told to play the first couple minutes, the first four, five minutes and then go to 29 minutes. THE COURT: Yes. But I haven't got 20 minutes. MR. FERBER: I am moving it forward. (Video played) That is the guy who plays her husband, Chuck Traynor. (Video played) MR. FERBER: Your Honor, that actor is playing her husband. MR. MANDEL: What is the next marker? MR. FERBER: I think it is a anywhere between here and 45 minutes in. THE COURT: You have a problem with timing now. I thought if we could get very quickly the scenes that are relevant from this film, but if we can't, I guess we will have to come back tomorrow or something. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

13 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. BHANDARI: Can we look at the film so we can pull for you the scenes that are relevant to the infringement? We are the ones who have to show you the infringement and how it infringes. MR. FERBER: My only problem with that is, and I'm happy to do that, but I think it is important also for the whole film to be seen. Otherwise the transformative nature of the use isn't evident. You have to see the use in the context of the whole film, which is a biographical and social commentary. MR. MANDEL: We understand your Honor has a conference or sentencing on. If the Court would permit us, counsel can work with each another to find the key two or three more scenes that need to be seen in this particular film. Of course, we're happy to leave it with you to watch the particular scenes or whatever scenes are appropriate. THE COURT: I will tell you what I think. I better get up to Court. What I was hoping to see was the scenes that you claim were infringing. MR. FERBER: I think it's coming up, your Honor. THE COURT: How quickly? MR. FERBER: Is it at 29 yet? MR. BHANDARI: 28:02. MR. FERBER: Within the next minute I think is when it starts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

14 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: That's good. (Video played) MR. FERBER: That is the actor Larry Reems, who plays the doctor. I mean he's playing Harry Reems. (Video played) THE COURT: Who is the person with the camera? MR. FERBER: The cameraman. He's playing the cameraman. This is how it's been described to me. I think we are about to show one of the scenes actually being shot back in 1970 or whatever. (Video played) THE COURT: OK. That is all I need to see. What this shows is something far different from the original Deep Throat, and that is a production with cameramen and so forth. That is all I need to see. The motion is denied. It is not a copy. It is a use, but very different from what appears in the original. In other words, you've got people setting up a scene, photographing, and so forth. That is it. I've got to conclude this. The record will show that the motion for a temporary restraining order is denied. If there is a need for a hearing on a preliminary injunction motion, that can be set. But the motion for a temporary restraining order is denied. Thank you very much. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300

15 D87narrc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. MANDEL: Thank you, your Honor. Just so the record is clear -THE COURT: That's it. MR. MANDEL: OK. MR. BHANDARI: Your Honor, may we ask one question? THE COURT: Yes. MR. MANDEL: With respect to the hearing on the PI, when would we have that? THE COURT: You can work that out with my clerk and so forth. MR. MANDEL: OK. Thank you. THE COURT: I don't particularly see why we are having one, but we will have one if we have to. MR. MANDEL: OK. Thank you. Just so the record is clear, with respect to the second film, the Lovelace film, we've only watched half of the scenes that are copied. We have not watched all of them. THE COURT: I understand. I see the method here, and that is all I needed to see. Thank you very much. MR. MANDEL: Thank you, your Honor. (Adjourned)


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