I’ll give you four factors, and the last three don’t count: Lovelace film is fair use

Arrow Productions, LTD. v. Weinstein Company LLC, No. 13 Civ. 5488 (S.D.N.Y. Aug. 25, 2014)
Someday I might stop blogging copyright fair use and trademark defendant wins on the pleadings, but today is not that day.  Also, I appreciate the court’s avoidance of smutty puns; given the topic, not all judges would have remembered to respect the person whose story this case is ultimately about.
Arrow, which owns the copyright to Deep Throat and marks for DEEP THROAT and LINDA LOVELACE, sued Weinstein for copyright and trademark infringement based on the movie Lovelace, a biography of Linda Lovelace, Deep Throat’s star.  The court characterized Deep Throat as a “famous pornographic film replete with explicit sexual scenes and sophomoric humor.”  The plot features a woman who can’t achieve orgasm until a doctor tells her that she can only achieve orgasm by performing oral sex because her clitoris is in her throat.
Lovelace, by contrast, is a biographical film that “provides a two-pronged look at the tragic life of Linda Lovelace.”  It documents her marriage to Chuck Traynor, her decision to enter the pornography business, and her development into a cultural icon. “Then, the film provides a behind-the-scenes depiction of Lovelace’s life that focuses on the physical and emotional abuse that Traynor inflicted upon her, and the manner in which he coerced her into participating in Deep Throat and its subsequent marketing.”  The film shows how Lovelace, once the most famous pornography star in the business, became an outspoken critic of pornography.  It has no pornographic scenes or even nudity.
Arrow identified three scenes in Lovelace copied from Deep Throat.  Deep Throat “opens with Lovelace driving down the road in a blue Cadillac” while the credits roll.  This scene has music but no dialogue.  Lovelace provides “a behind-the-scenes depiction of the filming of this scene,” roughly thirty minutes into the film.  The Cadillac is red; the film depicts Lovelace struggling with nerves and uncertainty while the director tells her to “Just drive and pretend we’re not here,” which she ultimately does.
The second scene was Deep Throat’s second scene (and first pornographic scene).  Lovelace arrives at home to find a man performing oral sex on her housemate, Helen, in the kitchen. Lovelace says to Helen, “that’s a pretty sight. I hope that I’m not interrupting anything,” then when says she’s not, begins to put away some groceries.  Helen asks Lovelace for a cigarette and asks the man, “mind if I smoke while you’re eating?”  In Lovelace, this scene is recreated about halfway through and shown during a red-carpet screening of Deep Throat.  Lovelace sits with Hugh Hefner, watching the film and discussing her future, intercut with shots of the recreated scene.  There are no groceries in the recreated scene, and Lovelace is complaining to Helen about her inability to achieve orgasm, saying “there’s got to be more to sex than a lot of little tingles. There’s got to be bells ringing, dams bursting, or bombs going off.”  Helen asks, “you want to get off or wreck a city,” causing the screening audience to erupt in laughter.  Later in the film, during the behind-the-scenes part of the story focusing on Lovelace’s suffering, this scene returns, with the detail that during the screening, Hefner asks Lovelace to perform oral sex on him in an apparent quid pro quo.
The third scene was the pivotal diagnosis scene.  In Deep Throat, Lovelace meets with Dr. Young, “an eccentric and quirky man [who provides] no evidence that he is an actual doctor apart from his title. His office is in his home and he is assisted by a young nurse, who also doubles as his sexual companion.”  He starts the consultation blowing bubbles with a children’s toy.  Lovelace tells Dr. Young that there must be more to sex than “little tingles” and that she wants “to hear bells, bombs, and dams bursting.” Dr. Young performs a vaginal exam, using a telescope and his fingers.  He then determines that her clitoris is actually in her throat. This diagnosis makes Lovelace cry; Dr. Young consoles her and encourages her to try deep throating him with the encouragement, “try it. You’ll like it.” “A pornographic scene ensues and Lovelace is finally able to achieve an orgasm.”
In Lovelace, this scene appears in a behind-the-scenes account of its filming.  The first half (diagnosis) is filmed one day, and the second (sexual content) is filmed on the next.  Lovelaceshows the performers as well as the directors and producers in the frame.  Dr. Young doesn’t conduct a full physical exam, though the bubbles, key dialogue, and Lovelace crying are the same as in Deep Throat.  When the first day of filming ends, Traynor is aggravated and intimidates Lovelace; the producers decide to get him out of the way for filming the pornographic parts of the scene.  Lovelaceshows the directors and producers in the frame for that second half as well.  One of the producers jokes, “we’re all gonna win Oscars.”  Dr. Young ejaculates prematurely in what’s clearly the first take; the surprised producers mock him.  Lovelace sheepishly asks, “I’m really sorry, did I do something wrong?” The producers and director reply, “no…no…no.”
To the defense: fair use is a mixed question of law and fact, but fair use can be determined on the pleadings despite the requisite caution.  The factual record here was “complete” and discovery wouldn’t help.  (This is because the only issue for which extrinsic evidence might be developed would go to a market for copyright-owner-licensed biographies; because such a market is legally irrelevant, nobody cares.)  “All that is necessary for the court to make a determination as to fair use are the two films at issue—Deep Throat and Lovelace.”
Purpose and character of the use: A use listed in the preamble to §107 is presumptively fair.  Bill Graham explained that “[b]iographies in general and critical biographies in particular, fit comfortably within these statutory categories of uses illustrative of uses that can be fair.”  Thus, Lovelace, a critical biographical work, was entitled to a presumption of fair use.  Lovelace’s use or recreation of three scenes from Deep Throat was transformative, “adding a new, critical perspective on the life of Linda Lovelace and the production of Deep Throat.” (Note the implicit, and entirely correct, rejection of the folly and detour of Salinger v. Colting’s suggestion that criticism of an author wasn’t transformative of a work; providing insight on Linda Lovelace and providing insight on Deep Throat are linked and neither can nor should be distinguished for purposes of fair use analysis.) 
The three scenes were recreated to focus on a defining part of Lovelace’s life: her starring role in Deep Throat. Two of the scenes provided a behind-the-scenes perspective to show Lovelace’s apprehension and unfamiliarity during filming.  The scenes were “markedly different from the originals—they include actors playing the parts of the director, producers, sound directors, and videographers as well as entirely new dialogue surrounding the filming of the shots.” But, “most importantly,” Lovelace portrayed Lovelace as a vulnerable amateur. Whereas the driving scene in Deep Throat doesn’t meaningfully advance the plot but just allows the display of the credits, Lovelace makes the driving scene important to establish the theme of Lovelace’s anxiety and amateurism.
Likewise, the infamous Dr. Young scene was split in two and became “a behind-the-scenes account of its young, inexperienced, and susceptible star,” stripped of the sexually explicit part of Dr. Young’s physical exam as well as of the pornographic components of the scene.  Dialogue was copied, but as Bill Graham said, “it is both reasonable and customary for biographers to refer to and utilize earlier works dealing with the subject of the work and occasionally to quote directly from  such works.”  Dividing the scene in two allowed Lovelace to highlight Lovelace and Traynor’s fraught relationship, furthering the most important plotline in the film—“Traynor’s control, abuse, and manipulation of Lovelace.”
As for the scene with Helen, it too had an “entirely different context.” The recreated scene appeared before a screening audience, with different dialogue and a different set, but more importantly “an entirely different purpose.”  Lovelace removed the nudity and instead juxtaposed the positive response to the film with Lovelace’s suffering, a central theme of the film.
That Lovelace was made for profit was of little significance.  Nor was the creative nature of the copied work, even though that favored Arrow. Factor three basically asks whether the defendant took no more than necessary given its purpose.  The three scenes at issue last about four minutes, out of a 61-minute running time for Deep Throat; “each scene, as discussed above, serves a distinct and important purpose in telling the story of Linda Lovelace.”  Thus Lovelace didn’t copy more than necessary.  Nor did it copy the core of Deep Throat.  The “heart” of Deep Throat was pornographic depiction of deep throating, while Lovelace was a critical biography.  “[G]iven that the two films have entirely different purposes, it is impossible that defendants could have copied the core of Deep Throat.”  Factor three favored fair use.
Factor four: Courts must consider harm to derivative markets, but only “if the market is traditional, reasonable, or likely to be developed and is not a protected transformative use.” A copyright owner’s willingness to license transformative uses can’t prevent others from entering fair use markets.  Lovelace could not supplant demand for Deep Throat, because the two films have entirely different subjects—one is a pornography and the other is a critical biography.”  As for derivative markets, Arrow alleged that it licensed Deep Throat for Inferno, a film that was also to be a biography of Linda Lovelace, but that Infernolost funding when the press began to report on the production of Lovelace.  That doesn’t matter because Lovelace was transformative.  (RT: Indeed, the evidence of a lost market in Cariou was much more persuasive, and still didn’t count.) “[P]laintiff cannot prevent defendants from entering this fair use market.”
Fair use as a matter of law.  (Sadly, though, the court declined to award attorneys’ fees to defendants, stating that the claims weren’t “so unreasonable” as to merit a fee award.  I know this is a big production company and all, but until courts are willing to pull the trigger on fees for claims this obviously unwinnable, they’ll keep getting made.)
Now to trademark infringement and dilution.  Rather than going the Rogers/noncommercial use absolute exemption route, the court chose an approach that is in some ways even stronger: it rejected the claims as insufficiently pled as a matter of law. For infringement, Arrow alleged that defendants infringed by “advertising and distributing Lovelace, a movie whose title infringes upon plaintiff’s Linda Lovelace mark, and advertising and promoting Lovelace by repeated mention of plaintiff’s ‘Deep Throat’ movies and mark.”  Further, the complaint alleged that defendants’ “use of ‘Lovelace’ and ‘Deep Throat’ are false designations of origin which are likely to cause confusion, to cause mistake and to deceive as to the affiliation, connection or association with plaintiff as to the origin, sponsorship, or approval of Lovelace by plaintiff.”
But Arrow failed to plausibly allege that consumers were likely to be confused. These were mere conclusory labels.  Arrow didn’t offer any reason that consumers would believe that Arrow was involved with Lovelace’s production.
So too with dilution (both blurring and tarnishment).  Arrow alleged that Lovelace was “likely to cause dilution by blurring the distinctiveness of plaintiff’s famous marks Linda Lovelace and Deep Throat” and “likely to cause dilution by tarnishment by harming the reputation of Plaintiff’s famous marks Linda Lovelace and Deep Throat.”  These conclusory allegations merely recited the elements of the cause of action, without any factual basis for a claim of impaired distinctiveness or tarnished reputation of the marks.  (I remain interested to see how one could allege facts supporting a dilution claim, particularly blurring.)

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