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Who has a legitimate claim to the movie Deep Throat?

To answer that question, there’s an upcoming settlement conference between VCX and Arrow Productions to resolve the Deep Throat-The Devil in Miss Jones issue once and forall and to determine who can legitimately distribute those titles.

Back in April, 2009, Arrow Productions which claims to own the trademarks to the “Deep Throat” series of 15 films and to the name “Linda Lovelace,” filed a lawsuit in the U.S. District Court in Las Vegas against VCX, a North Las Vegas company owned by David Sutton.

Sutton had been marketing some of the Deep Throat films on its Web site and The Devil in Miss Jones, in addition to other classic porn movies from the ‘70s, ‘80s and ‘90s.

Linda Lovelace was the central character in the Deep Throat series. It was the stage name of the actress Linda Susan Boreman who starred in the original movie, according to the suit. Boreman died in 2002.

The movie Deep Throat, with box office sales reported at $600 million, is credited with broadening the appeal of pornography in the 1970s and the brand has been featured in an Arrow energy drink, T-shirts and posters; and in the “Deeper Throat” reality TV series on Showtime.

In its lawsuit, Arrow Productions charged that beginning in 2009, VCX had been wrongly selling copies of the Deep Throat movies, including alleged counterfeit movies.

“Defendants have infringed plaintiff’s mark in interstate commerce by various acts, including advertising and distributing prerecorded DVDs under the name Deep Throat,” the lawsuit charged.

“Said use of said name and mark by defendants is without permission or authority of plaintiff and said use is likely to cause confusion, to cause mistake and to deceive.”

The suit, which was filed by Las Vegas attorneys Clyde DeWitt and Allen Lichtenstein, sought an order requiring VCX not only to stop selling Deep Throat movies, but to turn over to Arrow any inventory of Deep Throat movies and DVD labeling and packaging; and that it recall from consumers all such movies it sold.

Arrow Productions then expanded its trademark and copyright infringement suit against VCX and Sutton to include the same provisions for The Devil in Miss Jones which it was also selling on its website.

Arrow, in its six-count amended complaint, alleged trademark and copyright infringement and counterfeiting over the sale of various versions of the “Deep Throat” and “The Devil in Miss Jones” movies, both produced in the early 1970s.

In addition to the series of Deep Throat and “Linda Lovelace” movies Arrow also claimed it owned six “The Devil in Miss Jones” movies.

There had been an earlier attempt at a settlement but Arrow Productions owner Ray Pistol scuttled that just days after both parties informed the court an agreement between the two adult companies had been made in the copyright suit.

As a result, the case went back on the docket because Arrow’s attorney Clyde DeWitt, in a brief to the court, said that in a second meeting over settlement terms with Pistol it became apparent there had been a mutual mistake between client and attorney concerning acceptable settlement terms.

In an interview with The Las Vegas Sun, Sutton explained that he started distributing “Deep Throat” because Arrow had refused his repeated requests that it stop distributing two other classic films VCX said it has the rights to: “Debbie Does Dallas” and “The Devil in Miss Jones.”

If Arrow would give up those two titles, he’d give up “Deep Throat, Sutton simply stated.

According to Sutton, the best thing for both parties is to sit down and negotiate. Because if the lawsuit isn’t dismissed, a judge could find “Deep Throat” to be in the public domain — meaning anyone could legally copy and use it for free.

And that, he said, is why he didn’t sue Arrow over Arrow’s marketing of “Debbie Does Dallas” and “The Devil in Miss Jones.”

The last thing anyone in the porn industry wants is for a judge to rule that any of these films are in the public domain, according to Sutton.

Sutton’s claiming rights to the old films under an interesting legal theory. He said the predecessor companies of both VCX and Arrow originated during an era when the mob controlled the pornography industry, and that today VCX has a “mob provenance” claim of ownership over the old films.

The Colombo crime family produced “Deep Throat” for $25,000 and made a fortune off the production; and that the mob controlled the industry in the 1970s and into the 1980s.

The organized crime section of the 1986 Meese Commission report on pornography even includes several references to VCX founder Norm Arno.

In his Las Vegas Trademark Attorney blog, attorney Ryan Gile highlighted an important point about the case.

Gile said that because pre-1989 copyright law required all works to be published with a copyright notice, one issue is whether “Deep Throat” was published without a copyright notice because, if it failed to do so, then the movie might be in the public domain.

“Of course, despite the morass of causes of actions relating to trademark infringement in Arrow’s complaint, this case is really about copyright infringement, and more particularly, whether the film ‘Deep Throat’ is in the public domain.

“After all, if the movie is in the public domain and all that VCX is doing is distributing that single work under that single title, then VCX is not using the term ‘Deep Throat’ as a mark to identify the source of goods and services, but merely as the genuine title of the work,” Gile wrote.

Sutton said that despite the overwhelming amount of new porn available for purchase and for free on the Internet, the classic porn industry continues to do well in its niche, with the top five titles probably grossing $5 million per year industry wide.

“We’re reaching a second and even a third-generation viewer. Some (movies) have a cult following,” he said.

Pistol, meanwhile, has continued a no comment policy on the legal proceedings.

To be continued