1256031-V1-transcriptofTROhearinh

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D87narrc1 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.11

11 Before:1212 HON. THOMAS P. GRIESA,1313 District Judge1414 APPEARANCES1515 MANDEL BHANDARI LLP16 Attorneys for Plaintiff16 BY: EVAN MANDEL17 RISHI BHANDARI17 ROBERT GLUNT18 BENJAMIN DELSON18

19 PRYOR CASHMAN19 Attorneys for Defendants20 BY: TOM J. FERBER202122232425

SOUTHERN DISTRICT REPORTERS, P.C.(212) 805-0300


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D87narrc1 (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 repeat

10 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 kitchen

22 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,



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D87narrc1 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 matter

10 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 in

22 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 that



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D87narrc1 the plaintiff will lose crucial intellectual property. We are2 talking about a blockbuster film that made hundreds of millions3 of dollars and we are talking about the most important parts of4 that film. It is iconic in a cultural sense. It changed the5 way Americans see pornography and the right to control that6 intellectual property is very, very difficult to value. It is7 critical that the plaintiff not be deprived of that right.8 Third, consumers are going to be confused. This is9 where the copyright claims get tied in with the trademark

10 claims. The name Lovelace has been trademarked by my client11 and misappropriated by the defendant. The character, which is12 the subject of a copyright, that character has been13 misappropriated by the defendant's film, and the actual scenes14 have been appropriated.15 So consumers are going to believe that it must be the16 owners of Deep Throat somehow approved of this film because so17 much of this film borrows from Deep Throat. It would be18 impossible for this intellectual property to wind up in a film19 without obtaining a license. So consumers will be confused.20 Finally there is a First Amendment right, of course,21 not to make a movie using your intellectual property. If there

22 is no injunction here, the defendants will obtain the right to23 speak and the right to force the plaintiff to speak without24 giving the plaintiff the right to exercise its option not to25 speak.



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D87narrc1 MR. FERBER: To summarize very quick.2 THE COURT: Mr. Ferber.3 MR. FERBER: Yes. I'm Tom Ferber for most of the4 defendants, including -- actually, I should put that in the5 record, including the Weinstein Company, Radius-TWC, Millennium6 Films, New Image and Ecletic Pictures and Avi Lerner. I may be7 later representing the couple of remaining defendants, but I8 don't have that authority yet.9 The defendants' film Lovelace is a serious film. It's

10 not pornographic. It is a biographical film that depicts the11 exploitation of the woman who became known as Linda Lovelace by12 her husband and others in the porn industry and how she was13 coerced and abused into being a pornographic actress and14 staying in that business for some time, and the things that15 later caused her to become an antipornography advocate.16 The film is, to the extent it reenacts, it does not17 use footage as Mr. Mandel was suggesting before we went on the18 record, it does not use footage. It reenacts, as do other19 films that show films being made, a film within a film, like My20 Week with Marilyn and I believe others, the filming of a couple21 of short scenes. I believe it is something like 200 or

22 slightly over words of the script of Deep Throat -- this is23 what I am informed, I have not seen the film -- and perhaps24 three dozen very, very short lines of dialogue.25 The film was done with the cooperation and support of



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D87narrc1 Ms. Lovelace's children and her estate, Gloria Steinem as well2 as Ms. Lovelace's attorney Catherine MacKinnon. The directors,3 Rob Epstein and Jeffrey Friedman, are Academy Award winning4 documentarians for subjects ranging from Harvey Milk to Allen5 Ginsberg to the AIDS crisis and life for the gay and lesbians6 in America. They've won Peabody and Emmy awards. They have7 had stuff put in the National Film Registry. I believe the8 complaint makes it clear that this case is being brought for9 anticompetitive purposes and to suppress public discussion.

10 It acknowledges that Deep Throat was, as it puts it at11 the beginning of the complaint, a watershed moment for American12 culture that helped change American mores regarding13 pornography.14 Yet paragraphs 37, 40 and 42 through 44 make it clear15 that plaintiff is trying to protect, I should say use its16 intellectual property rights not as a shield, as then Judge17 Sotomayor once said in a case I was in, but as a sword against18 competition.19 Noting in paragraph 44 in the complaint they say, once20 in 2010 -- we'll get to the delay -- the industry press started21 talking about Lovelace the funding for their competing project

22 dried up, which as I said is not the defendants' problem.23 Paragraphs 3, 37 through 39 and 62 to 64 also make it24 clear that they are trying to impede public debate by25 controlling who can depict Ms. Lovelace's life and the filming



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D87narrc1 of Deep Throat and its place in American popular culture,2 which, as Mr. Mandel just said repeatedly, is iconic.3 I discussed with the judge before we went on the4 record the obvious First Amendment protection that motion5 pictures enjoy and I cited to the Hicks v. Casablanca case in6 the Southern District in 1978, involving the film Agatha and7 the Valentino case --8 THE COURT: Let's not recite law.9 MR. FERBER: OK, your Honor.

10 With respect to the copyright claim, I noted that the11 complaint anyway -- I have not read all the papers -- the12 complaint, which I got last night, shows no chain of title. It13 shows copyright registrations in other parties' names.14 THE COURT: Let's not get into that.15 MR. FERBER: I explained the reasons why I believe16 that the use of the reenactments of those few lines of dialogue17 showing the scenes being shot, not the scenes themselves as the18 complaint says, it is a film within a film, is transformative.19 THE COURT: What do you mean by that?20 MR. FERBER: Lovelace shows Linda Lovelace and other21 actors Harry Reems, etc., and Hugh Hefner is portrayed, as they

22 went through historical events. A couple of those events are23 filming of scenes within Deep Throat. The scenes that were the24 scenes that changed American popular culture's view of25 pornography.



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D87narrc1 THE COURT: When these are shown in your film, is it2 somebody with a camera? Is it the scene?3 MR. FERBER: I am told you literally see, for4 instance, the most famous scene, you see the producers and5 directors sitting around. You see cameramen, and then you see6 the people playing the actors --7 THE COURT: Let me interrupt.8 I didn't think this was necessary, but it is9 absolutely necessary for me to see what you are talking about

10 from Deep Throat and see what you are complaining about, at11 least in the defendants' film. I can't make any decision12 without seeing that. When can I see it?13 MR. FERBER: Your Honor, I brought the only DVD that I14 have gotten and have not even seen yet with me. I can leave it15 with the Court as long as it's not made publicly available. I16 have somewhere here an e-mail which will enable me to guide17 your law clerk and the Court, and a time clock to the scenes18 that we think they are referring to take place.19 MR. MANDEL: We think it is an excellent idea for your20 Honor to see it. We, of course, would like a copy as well.21 MR. FERBER: Which I'm trying to get for tomorrow

22 form. The time clock burned out.23 THE COURT: There are all kinds of ways to view films.24 Have you got a video?25 MR. FERBER: I have a DVD, your Honor, one DVD I



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D87narrc1 wasn't expecting to have. It was a surprise to me.2 MR. MANDEL: And we have DVDs for everyone of our3 film.4 THE LAW CLERK: Would you like to do it in the5 courtroom?6 THE DEPUTY CLERK: I will have it brought here, Judge7 a player and a monitor.8 MR. FERBER: Should I continue, your Honor?9 THE COURT: Let's take a little break.

10 (Recess)11 (Video played)12 THE COURT: What are we seeing?13 MR. MANDEL: This is the opening scene that we were14 referring to earlier, your Honor. We are going to watch three15 scenes. That is Ms. Lovelace. It's Ms. Boreman. The16 character's name is Lovelace.17 THE COURT: I thought we were going to see three18 scenes of this and three scenes of theirs.19 MR. MANDEL: That is correct, your Honor. This is the20 first scene.21 (Video played)

22 THE COURT: For heaven's sake, do we have to sit here23 forever and look at a highway?24 MR. MANDEL: My hope, your Honor, is that in total you25 will see less than ten minutes of footage of this film.



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D87narrc1 THE COURT: OK.2 MR. MANDEL: The second relevant scene is the one3 immediately following this one.4 THE COURT: OK.5 MR. MANDEL: This is where the second scene begins,6 your Honor.7 THE COURT: OK.8 MR. MANDEL: That is one of the film's celebrated9 lines.

10 THE COURT: What is that? I couldn't even understand11 it.12 MR. MANDEL: I believe the line was, "Mind if I smoke13 while you're eating."14 MR. BHANDARI: I think there is a third scene after15 that. Should we watch the first two scenes of the movie16 because we've got to find the third scene? It is not17 immediately --18 MR. MANDEL: I think we can just fast forward.19 MR. FERBER: You will find the scenes in the movie are20 very limited.21 MR. MANDEL: Just skip to the next thing. Just trust

22 me on this one.23 MR. BHANDARI: OK.24 MR. MANDEL: Rewind a little bit. This is the scene.25 MR. FERBER: The doctor scene?



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D87narrc1 MR. MANDEL: I believe so.2 MR. BHANDARI: I can only jump forward and backwards.3 (Video played)4 MR. MANDEL: Why don't you pause it for a second.5 What we are skipping, your Honor, is she explains to6 her friends and others that she is having trouble achieving7 sexual satisfaction and a friend recommends that she see a sex8 therapist. The physician's office scene is the scene where she9 takes the friend's advice and goes to see the sex therapist.

10 THE COURT: All right.11 (Video played)12 MR. BHANDARI: Is this where it would end? We can13 come back to it.14 MR. MANDEL: Why don't we fast forward. I have no15 idea if that is the end of the scene.16 MR. BHANDARI: Why don't we see the other movie. If17 there is more that is in Deep Throat, we will find the18 sections.19 THE COURT: Let's see the same kind of thing in the20 other one.21 THE LAW CLERK: Are there chapters built in with

22 respect to each scene?23 MR. FERBER: I am going to tell you what I was told,24 period where we might find what you are referring to within it,25 even though it may only be off and on with that.



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D87narrc1 THE COURT: Let's see the kind of depiction in your2 film. Can't we do that? I thought we could.3 THE LAW CLERK: I will allow you do it.4 MR. FERBER: You can put it in.5 THE LAW CLERK: All right. Just let me play through?6 MR. FERBER: Yes.7 (Video played)8 THE COURT: Where are the things that infringe?9 MR. FERBER: I haven't seen this. I am told to play

10 the first couple minutes, the first four, five minutes and then11 go to 29 minutes.12 THE COURT: Yes. But I haven't got 20 minutes.13 MR. FERBER: I am moving it forward.14 (Video played)15 That is the guy who plays her husband, Chuck Traynor.16 (Video played)17 MR. FERBER: Your Honor, that actor is playing her18 husband.19 MR. MANDEL: What is the next marker?20 MR. FERBER: I think it is a anywhere between here and21 45 minutes in.

22 THE COURT: You have a problem with timing now. I23 thought if we could get very quickly the scenes that are24 relevant from this film, but if we can't, I guess we will have25 to come back tomorrow or something.



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D87narrc1 MR. BHANDARI: Can we look at the film so we can pull2 for you the scenes that are relevant to the infringement? We3 are the ones who have to show you the infringement and how it4 infringes.5 MR. FERBER: My only problem with that is, and I'm6 happy to do that, but I think it is important also for the7 whole film to be seen. Otherwise the transformative nature of8 the use isn't evident. You have to see the use in the context9 of the whole film, which is a biographical and social

10 commentary.11 MR. MANDEL: We understand your Honor has a conference12 or sentencing on. If the Court would permit us, counsel can13 work with each another to find the key two or three more scenes14 that need to be seen in this particular film. Of course, we're15 happy to leave it with you to watch the particular scenes or16 whatever scenes are appropriate.17 THE COURT: I will tell you what I think. I better18 get up to Court. What I was hoping to see was the scenes that19 you claim were infringing.20 MR. FERBER: I think it's coming up, your Honor.21 THE COURT: How quickly?

22 MR. FERBER: Is it at 29 yet?23 MR. BHANDARI: 28:02.24 MR. FERBER: Within the next minute I think is when it25 starts.



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D87narrc1 THE COURT: That's good.2 (Video played)3 MR. FERBER: That is the actor Larry Reems, who plays4 the doctor. I mean he's playing Harry Reems.5 (Video played)6 THE COURT: Who is the person with the camera?7 MR. FERBER: The cameraman. He's playing the8 cameraman. This is how it's been described to me. I think we9 are about to show one of the scenes actually being shot back in

10 1970 or whatever.11 (Video played)12 THE COURT: OK. That is all I need to see.13 What this shows is something far different from the14 original Deep Throat, and that is a production with cameramen15 and so forth.16 That is all I need to see. The motion is denied. It17 is not a copy. It is a use, but very different from what18 appears in the original. In other words, you've got people19 setting up a scene, photographing, and so forth. That is it.20 I've got to conclude this. The record will show that21 the motion for a temporary restraining order is denied. If

22 there is a need for a hearing on a preliminary injunction23 motion, that can be set. But the motion for a temporary24 restraining order is denied.25 Thank you very much.



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D87narrc1 MR. MANDEL: Thank you, your Honor. Just so the2 record is clear --3 THE COURT: That's it.4 MR. MANDEL: OK.5 MR. BHANDARI: Your Honor, may we ask one question?6 THE COURT: Yes.7 MR. MANDEL: With respect to the hearing on the PI,8 when would we have that?9 THE COURT: You can work that out with my clerk and so

10 forth.11 MR. MANDEL: OK. Thank you.12 THE COURT: I don't particularly see why we are having13 one, but we will have one if we have to.14 MR. MANDEL: OK. Thank you.15 Just so the record is clear, with respect to the16 second film, the Lovelace film, we've only watched half of the17 scenes that are copied. We have not watched all of them.18 THE COURT: I understand. I see the method here, and19 that is all I needed to see. Thank you very much.20 MR. MANDEL: Thank you, your Honor.21 (Adjourned)

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