Devil's in the Details

Erik Jay
On April 28, 2009, Arrow Productions filed suit against VCX and its owner David Sutton for selling DVD copies of “Deep Throat,” the most famous porn movie of all time. In a multicount complaint Arrow alleged that VCX committed copyright infringement and counterfeiting, among other things, by marketing the iconic 1972 film starring the late Linda Lovelace.

Both Arrow and VCX, two of the oldest porn firms, have soared with eagles and fought with vultures over the years. In the lawsuit, Arrow claims sole ownership of the copyright and trademark on 16 “Deep Throat” movies, two other Linda Lovelace movies and related products.

“Deep Throat” was produced by Louis “Butchie” Peraino’s Plymouth Distributing firm, later renamed Arrow Film and Video and now known as Arrow Productions. Raymond Pistol runs the company today.

VCX’s Sutton responded at the time that the suit was mere “posturing,” as Arrow Productions had made the first move by re-releasing VCX’s “Debbie Does Dallas” and “The Devil in Miss Jones.” Sutton claims his “Deep Throat” release was a simple, tit-for-tat negotiating strategy.

“I told Ray [Pistol] to stop,” Sutton told XBIZ in a recent conversation. “He gave me the same old BS story. I told him last year I was through playing around and would put out ‘Deep Throat’ if he didn’t stop his nefarious actions.”

Arrow recently ratcheted up the pressure, amending its complaint in mid-August to include yet another classic porn title, “The Devil in Miss Jones.” As with “Deep Throat,” Arrow claims to hold all copyrights and trademarks associated with six “The Devil in Miss Jones” movies.

The true history of “Deep Throat” is about as clear as the average urban myth.

Rumored to have cost under $50,000, “Deep Throat” was directed by Gerard Damiano. He was “persuaded” to take $25,000 for his share of the partnership, or so the story goes. Some say the film was the greatest investment of all time, with $600 million in lifetime receipts.

“I keep hearing these stories of $600 million,” VCX’s Sutton told XBIZ recently. “$20 million would probably be a pretty good number for it, maybe 50. But $600 million? Please!”

Nevertheless, huge sums of money hinge on the Arrow-VCX lawsuit and the precedents it could set. After being banned in much of the U.S. upon release, “Deep Throat” is now a 21st century brand that includes an energy drink, t-shirts and sundry other products.

Money, of course, is the root of the dispute. According to Arrow attorney DeWitt, “The ‘Deep Throat’ mark is valuable, and Arrow has every right to exploit it.” In the April XBIZ story, DeWitt also claimed to discern Sutton’s motives, saying that the VCX principal “apparently believes that [‘Deep Throat’] is in the public domain.”

Sutton said he didn’t realize “that there was a PR campaign by Arrow full of false allegations. I have never maintained that any of the titles involved in the current litigation are in the public domain. Clyde DeWitt’s characterization of my ‘thoughts’ wouldn’t hold up in court.”

DeWitt, naturally, sees the matter differently, as he explained in a mid-September e-mail. “After cobbling together all of the information from both parties about ‘Deep Throat’ [we believe] the evidence substantiates that Arrow owns the copyright, not only [on] ‘Deep Throat’ but also on ‘Devil in Miss Jones.’” Thus, he stated, DeWitt and Arrow “wanted to bring this to a head for once and for all for both movies.” DeWitt insists that he and Arrow principal Pistol are “trying to reach a peaceful resolution.”

Sutton has consistently held that going to court was something that all parties in the case should work to avoid. “We had all but settled the case in May,” he explained, with concessions he felt would “settle this case amicably. I hope that the amended complaint [filed in August] is only an extension of those negotiations.” A negotiated settlement is something that the court system strongly encourages contending parties to work out, for reasons both legal and political.

“I’ve been in court before on copyright infringement,” Sutton stated. “Although [DeWitt’s] arguments have no weight at all, federal district judges just want these cases to just go away. They’re not what they want on their résumés. Judges will put these kinds of titles in the public domain. I’ve seen it happen. I don’t want it to happen again.”

Strange occurrences appear to be accumulating around this case of late. XBIZ has unearthed documents in the U.S. Copyright Office showing that VCX registered “The Devil in Miss Jones” as early as 1973. Other documents detail 30+ years of competing claims and registrations, by Arrow’s ancestral entities and VCX alike. In fact, an Arrow predecessor firm first filed a lawsuit over the involved titles in 1979, after the advent of videotape.

The case also involves the interpretation of such terms as “publication,” “public display” and “control.” In the “old days” before videotape players and recorders, many porn producers would rent theaters and show reel-to-reel films to paying customers, a process called “four-walling.” Piracy was rare because duplication was difficult, something that became push-button simple with the advent of Beta and VHS videocassettes and recorders.

In relation to “Deep Throat,” DeWitt made much of four-walling in an article published in another adult trade publication, since a public display without a copyright notice does not qualify as “publication” or a “public exhibition” that would allow for subsequent copying by others. For this question, the relevant law would appear to be the 1909 Copyright Act. Unless Arrow can show that they registered the film before it was ever “offered to the public,” a judge might rule that it is, in fact, in the public domain. It is hard to imagine how someone showing the film for profit for over eight years was somehow able to avoid “publication.”

Arrow would also have to demonstrate that at no time prior to 1979 did they lose control of this film. It strains credulity to think that copies of the film were not offered for sale or rental to others. The distribution of “Deep Throat” was enormous, so VCX may simply need to show that prints were offered to non-Arrow entities.

The “Devil in Miss Jones” situation is decidedly different, but being placed in the public domain is bad for both titles, Sutton believes. He feels trapped in a “Catch-22” situation where defending his firm may hurt the industry. This he does not want to do.

DeWitt summed up the situation with what may be the only two sentences that would elicit agreement from all parties. “Well, we have different positions and the judge will decide. I think this saga is a long way from over.”

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