Copyrights Get Heated In Deep Throat v. Debbie Does Dallas Lawsuit

By Kerrie Spencer, staff writer – November 15, 2011

Some days, life just gets more and more bizarre, particularly with regard to what people choose to file a lawsuit about. This case has its moments of hilarity, but most of all, onlookers ponder wonder why a lawsuit was filed in the first place. One wonders why a lawyer would take this kind of case, but to be blunt, everyone has rights and they must be protected.

At issue in this situation is whether or not the porn classics “Debbie Does Dallas” and “Deep Throat” are in the public domain. To say they caused a real stir when they were viewed would be a major understatement. Back at the University of Alberta law school in the 1970s the entire class of 45 potential lawyers rented a nightclub and ran “Deep Throat” to the loud hoots of most of the guys in the room. The females were not that impressed, but many had to admit it was something they had not seen done like that before, and so it became a shocking education of sorts. The star of the film was Linda Lovelace, aka Linda Susan Boreman. Boreman revealed her first husband beat her to perform in the film, and she later assumed the role of a spokesperson for anti-pornography. She died in 2002 at the age of 53. [1]

Not a man in that rented nightclub gave any thought to whether or not the movie was in the public domain. They were only interested in the female domain, plain and simple. Fast forward many years, and the porn industry is again dealing with these famous flicks due to the supposed illegal sharing of copies of “Debbie Does Dallas”.

Copyright lawyer Evan Stone intended to sue 113 people earlier in 2011 for that very reason. They were intended to be anonymous until the courts sorted out if it would be ethical to name them. But because he was in a rush to get the suit on track, Stone cut corners and sent out subpoenas to identify them after the court expressly said for him not to send them out. The judge sanctioned Stone by slapping him with a $10,000 fine. [2] [3]

The two adult entertainment companies involved recently settled a copyright infringement suit over the movies. But the whole thing is that there really was no copyright issue, as the two films in question were actually in the public domain. These porn classics were originally distributed without a copyright notice, which means, based on pre-1989 copyright laws, they were in the public domain. [4] It does make one wonder why a lawsuit was filed over a non-issue in the first place.

These two companies should have known better than to file a lawsuit that did not need to be filed. Possibly they did not want to admit that their movies were in the public domain. Going to court would have blown the – ahem – whistle on that issue, and so they settled up and did what amounts to a trade off: one company got the copyright to “Deep Throat” by giving up any rights to “Debbie Does Dallas”.

Their skewed rationale for claiming copyrights that do not exist, on films that are in the public domain, and therefore not subject to copyright, is precisely the real issue here – that neither “Deep Throat” or “Debbie Does Dallas” is covered by anyone’s copyright. [5] This conundrum makes it perfectly clear why both porn entertainment companies, involved in a lawsuit that did not go anywhere, hoped to settle and avoid having a judge rule that the films were in the public domain. What they really wanted is to do is trade, keep things as they were, and keep making as much money as they could.

One other possible issue is that one of the porn companies is trying to claim that “Deep Throat” was never really published and if that is the case, not having a copyright notice does not matter and does not apply. It appears that the back story pertaining to “Deep Throat” is that the producer did not give up any copies of the film and when he showed it, he leased a theatre in its entirety. He also paid his employees and collected all the revenue.

At the time the movie was shown, it is highly unlikely that anyone in the whole theatre was thinking about copyright issues and how they would impact the film industry for years to come. They were there to watch the action; and action they got, as “Deep Throat” reportedly netted $600 million in box office receipts. Pretty good for a supposedly non-published film.

In regards to “Debbie Does Dallas”, the agreement the two porn kings reached was Arrow Production must cease distributing “Debbie”, whether it is in the public domain or not. Interestingly, there is actually a court decision that rules “Debbie” is in the public domain. Nonetheless, what is really at issue here is the money. [6] This too is worthy of note, because considering the kind of money this film made, its star, Bambi Woods, was only paid $400 a day, and when the film wrapped, she vanished for 25 years. [7]

The story comes full circle. The two porn flicks in question are in the public domain and thus, no one really has copyright on them. However, in a dither to keep earning money on a highly profitable set of films, the two porn companies involved have more or less created their own copyright rules without vetting their positions with the courts. If nothing else, this issue raises some very real questions about society’s views on porn, its distribution and copyrighting. Should there be copyrighting for porn films? Should there be copyright for these two films? Should there even be porn films?

Sources
[1] http://en.wikipedia.org/wiki/Linda_Lovelace

[2] http://www.techdirt.com/articles/20111031/14012416574/various-lawsuits-trying-to-avoid-admitting-that-porn-classics-debbie-does-dallas-deep-throat-are-public-domain.shtml

[3] http://www.techdirt.com/articles/20110911/01030715892/copyright-troll-evan-stone-sanctioned-more-than-10k-sending-subpoenas-when-court-said-to-wait.shtml

[4] http://www.hollywoodreporter.com/thr-esq/how-a-nasty-legal-fight-252525

[5] Id.

[6] Id.

[7] http://www.yesbutnobutyes.com/archives/2007/05/debbie_does_dal_2.html

Background Sources
[8] http://www.lindalovelace.org/

[9] http://en.wikipedia.org/wiki/Debbie_Does_Dallas

[10] http://www.yesbutnobutyes.com/archives/2007/05/debbie_does_dal.html

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