11:39 p.m. August 8, 2013

Gagging Weinstein

Ray Pistol calls me at midnight. He sounds like a man who's had his fill of lawyers. As a lawyer myself, I’m frankly amazed he’s willing to go another round.

Hours earlier, a New York judge had refused to grant his injunction against Harvey Weinstein to halt the release of the movie “Lovelace”. The judge -- an 83-year old veteran of the bench, first appointed by Nixon -- was concerned that blocking the Deep Throat biopic would fall afoul of the First Amendment.

Photographers have been camped outside Pistol’s house all day. They even ambushed Pistol’s son when he returned from the store with his mother, Treasure. Freaked out, Treasure texted me: “There are actually paparazzi outside our house yelling ‘is that Ray Pistol's son?’ snap snap snap….it was creepy.”

The movie is due to hit iTunes in less than 24 hours. Pistol, a former combat marine who served in Vietnam, and who bought the rights to Deep Throat from the mob -- has a decision to make: to appeal the ruling, and wage war directly on iTunes and other distribution platforms, or to accept Weinstein’s victory.

To keep fighting, or -- for the first time in his life -- to back down.

* *

Like so many tabloid stories involving oral sex and protracted litigation, the story of “Lovelace” began with Lindsay Lohan.

It was 2010, and production had just gotten underway on a movie called "Inferno" in which Ms. Lohan was to portray Linda Lovelace, the star of Deep Throat. Or, perhaps more accurately, she was to portray the actress who played Linda Lovelace.

Either way, the movie never happened. Lindsay went to rehab, or committed some crimes and was headed to prison, or just couldn’t handle it. (I know you want a “D” : all of the above). The producers of Inferno announced that their star was out. The world would have to wait just a little longer for a Deep Throat –the Movie, um, the Movie.

Or not.

In another part of Hollywood, another production company was also trying to tell the story of Linda Lovelace. This movie, entitled “Lovelace,” had nothing to do with the Inferno production and apparently had barely started development before the Lohan movie began to sputter. The earliest public references to “Lovelace” are in January, 2010, when the producers, Laura Rister at Untitled Entertainment, Jim Young at Animus Films and Heidi Jo Markel at Eclectic Pictures, announced they were looking for financing. No “names” had yet been publicly attached as acting talent.

This curious, but apparently not unheard of, race for first on a biopic did not go unnoticed by a Las Vegas mom and pop couple: Raymond Pistol and Treasure Brown. As owners of Arrow Productions, they had previously secured the rights to the original Deep Throat and the trademark of the name Linda Lovelace.

Arrow Production had given its blessing, and had signed a licensing agreement, to the producers of Inferno. The producers of Lovelace had no such agreement.

On November 20th, almost as soon as the LA Times reported Lohan was out of Inferno, Arrow received a worrying tip: emboldened by Inferno’s struggles, Lovelace had started shooting, despite apparently not having secured full funding.

The race was on. A race that would ultimately lead all parties, three years later, to a New York court room.

Inferno, still with Arrow’s blessing, started to regroup, announcing that the actress Malin Akerman had been tapped to replace Lohan. But Hollywood’s faith in the project was already dented. As Pistol puts it, “no one wants to put money into the one that’s gonna come out second.”

On December 12, 2010, the first legal shot was fired. Charles Fries, representing the Inferno production team, sent an email to the producers of Lovelace. It outlined Inferno's copyright and trademark interests and advised that a “cease and desist” letter would be forthcoming. It invited the Lovelace group to call to discuss the issue.

The reply came fast. Lonnie Ramati, acting for Lovelace and described in his email signature as “6 feet 9 ½ inches tall…maybe 6 feet 10 inches tall with sneakers…The Tallest Business Affairs Person on Earth,” wrote…

Subject: Re: Lovelace

You can't trade mark Linda Lovelace.

This is total nonsense.

There are a ton of bio books, documentaries written by authors/others using that name without 1 single lawsuit from you.

You think her estate will agree with this nonsense?

Inferno’s lawyers sent their cease and desist anyway. This time, Ramati didn’t reply.

The silence, from both sides, lasted almost a year. Then, in November 2011, the movie industry trade press announced the actress Amanda Seyfried (who first gained prominence playing opposite Lohan in the hit movie Mean Girls), had been cast as the lead in Lovelace.

Inferno took another shot, this time bringing Treasure and Pistol’s Arrow Productions in the fight. On November 11, 2011, Arrow’s California lawyers sent the second cease and desist.

A month later, the Los Angeles law firm representing Nu Image, Inc. (the company which secured financing for the Lovelace project) responded with a two-page “screw you” replete with case citations offered as a preview to the legal issues that would form the core of the ensuing conflict.

In short, Nu Image primarily claimed that (1) Arrow doesn’t own any interest in Deep Throat or Linda Lovelace because it somehow entered into the public domain under prior copyright law and (2) It’s an absolute fair use of the subject matter to make their own movie.

Writing for his client, attorney Donald Gordon of Leopold, Petrich & Smith concluded: “All of your purported copyright claims are meritless.”

The cast and crew of Inferno thought they were beaten. Akerman was quoted by the Hollywood Reporter saying: “I would hope and love for it to go, but now this other movie is coming on that Amanda Seyfried did, and I kind of feel like, 'Shit, we should have been on that, we should have done it.'"

Still, they’d always have the stage play. In 2010, a playwright named David Bertolino had (with Arrow’s permission) launched a stage production called “The Deep Throat Sex Scandal” described as “following the lives of the cast and crew of the infamous movie as they are persecuted, then prosecuted by the Nixon administration.” It briefly debuted in New York City around the same time Ms. Lohan was melting down, and after quickly closing, re-emerged for a three-month run at the Zephyr theater in Los Angeles in 2013. The second run of the play was largely well-received and featured cameos from celebrities as disparate as Ron Jeremy, Bruce Villanch, porn legend Nina Hartley and Christopher Knight (TV’s Peter Brady). (To further complicate matters, Mr. Bertolino has since launched a crowdfunding campaign on indiegogo to turn the play into a movie.).

Pistol and Treasure, however, were unbowed. While continuing to exploit their trademark in Deep Throat through an energy drink and a reality show on Showtime, the couple kept a keen eye on the comings and goings of the Lovelace project. When I interviewed him earlier this year for a NSFWCORP profile, Treasure vowed unequivocally that Arrow were ready to file suit if Lovelace were actually to be released.

CUT TO:

The Sundance Film Festival this past January, where it was announced that a subsidiary of the Weinstein Group was the new owners of Lovelace. The movie was scheduled for a release on August 9, 2013: a limited theatrical release, on iTunes and through a V.O.D. provider.

A few months later, in July, Bertolino attended a preview screening of Lovelace and was shocked by how much the movie drew directly from the original Deep Throat. After the movie let out, he called Pistol to give him the details. According to documents subsequently filed by Arrow’s New York law firm, the producers had replicated vast chunks of Deep Throat, including…

(A) 36 lines of dialogue amounting to a total of 200 words, traceable to the original. This included seminal dialogue like “mind if I smoke, while you eat?”

(B) Three scenes from the movie, including the opening shot, the mind-if-I-smoke scene and the infamous “money” shot where the lead actress achieves orgasm through the clitoris in her throat appear virtually shot-for-shot with little, if any variation,

In all, about six minutes of the 60 minute film were re-created, amounting to 10 per cent of the original work

Even Pistol and Treasure were shocked that so much of the original appeared in the new movie. Even so, Pistol authorized his attorneys to make one last effort to reach out to Weinstein and company. Weinstein, who had insisted that the producers of Lovelace indemnify him against the cost of any successful copyright lawsuit, responded with what Pistol describes as a “really, really low ball offer.” Arrow’s attorneys rejected the offer and instead began preparing their request for injunctive relief. It was filed with the United States District Court for the Southern District of New York on August 7, two days before the movie's scheduled release.

The legal issues are somewhat complicated, with both Arrow and the producers of Lovelace claiming precedent is on their side. What’s unprecedented, though, is the brazenness of Weinstein and the Lovelace producers in claiming fair use for long, shot-for-shot reproductions of scenes from an iconic movie, without paying the trademark holders of the title character. Looking at it a different way, remember Gus Van Sant’s shot-for-shot remake of Psycho? Now imagine that happening without permission of the Hitchcock movie's copyright holder.

On the other hand, creative people make films about the lives of real people all the time – biopics are very popular – and you don’t necessarily need the rights to more than the biography to make the film. But how do you make a biopic of a movie? And does it make a difference that your original work of fiction is just dialogue tossed around people improvising sex on film? Or that the movie was originally owned by purported mobsters who only screened the movie privately to ensure they kept hold of all the proceeds? (That’s a whole other twist to the story: when Deep Throat was originally released, the producers neglected to register the copyright. But today Arrow argues that -- technically -- the private screenings mean the movie wasn’t publicly released until after registering copyright was no longer required by law.)

On Wednesday of this week, Arrow’s application to stop the release of Lovelace finally made it to court, with the Honorable Thomas P. Griesa, presiding. Eighty-three year old Judge Griesa was originally appointed by President Richard M. Nixon in June 1972, the same year – the same month -- as Deep Throat was released.

(Let’s just take a minute: a case involving the rights holders of Deep Throat, involving a biopic of Deep Throat would be heard by a judge appointed the same month and year that the movie Deep Throat was released, by a president (who famously called his opponents “cocksuckers”) who was eventually brought down by a man using the alias Deep Throat. And now the 83-old judge was watching scenes from Deep Throat on the bench. I’ll say this for Nixon: he plays a long game.)

Lawyers from both sides assembled in court, with Pistol awaiting news from home base in Las Vegas. He had spent the day scrambling to find the three million dollar bond required if the injunction was granted. News of the hearing broke quickly in the entertainment press – as news involving soon-to-be-released Weinstein movies reliably does - and paparazzi took their places outside Pistol and Treasure's house.

At 8pm, Entertainment Weekly ran the Weinstein-friendly headline: 'Lovelace' wins in $10 million lawsuit over 'Deep Throat' trademarks.

* *

Midnight, last night. Griesa’s judgmement is just a few hours old and Pistol is down, but not out.

“We knew the Judge was going to be hesitant to completely halt release because we had to prove that money damages alone wouldn’t satisfy our claims… The judge seemed to place special emphasis on the fact that I hadn’t seen the movie for myself and how could I complain about what’s in the movie if I hadn’t seen it. I get that, but we had a reliable source [Bertolino] who filled out an affidavit which we attached. As we thought he also talked about the First Amendment, but luckily he declined to make a judgment on the merits, so that leaves open an appeal and further action.”

“And do you think you’re going to win?” I ask.

A pause.

“If I’m going to invest tens of thousands of dollars or more into litigation I need to get my own eyeballs on this film and make the decision. I’m sure it won’t be good, and from what I understand, it really takes shots at the original film… what I can’t get over is how much they took from the original.”

“What about the claim that Deep Throat found its way into the public domain?”

“I’m not as worried as a lot of commentators are on that issue. These old school rough-and-roll guys were pretty savvy with their money-making projects. This challenge has been made before and it’s obviously never prevailed. Over the years, guys have sworn out testimony that they never intentionally distributed the film to anyone, that they always keep it in house and under wraps. That means no copyright notice was necessary. And good luck finding anyone to contradict it or change their testimony, they’re all dead.”

When I talk to Treasure, she’s still clearly shaken by the paparazzo incident. But she says she’s more afraid of Weinstein than she is of the press, or than she ever was of the “mobsters” from whom they acquired the rights to Deep Throat. She doesn’t elaborate.

I ask Pistol if he’s scared of Weinstein.

“Funny thing is that this apparently isn’t Weinstein’s war. We were told by the other side’s attorneys that when Weinstein bought the film, he also insisted on and got a full indemnification agreement, meaning if they lose, it won’t cost Weinstein a thing.”

I ask about the publicity benefits of a very public fight, arguably for Arrow’s other Deep Throat properties, but certainly for Weinstein…

“I guess you could say that, but it won’t save a horrible film and our damages are already done… there’s all sorts of consumer confusion out there where people think Lindsey Lohan was simply replaced by Amanda Seyfried – people think it’s the same film, but it’s very different. And apart from Inferno we have a whole bunch of other projects that will suffer if this movie tanks. The movie of the Bertolino’s play is impacted, our brand is impacted, they really have damaged us… We may sell more movies [of the original] for the interested, but that’s impossible to predict. In the end, it’s all about protecting the brand and the economic interest and the law is likely on our side, but it won’t be cheap.”

* *

By the time Pistol hangs up, it’s 2am. He still seems confident of victory, in the end. I’m not sure I agree, nor am I sure it matters. Unlikely to stop the film’s release, perhaps Arrow would be better to consider this a publicity windfall. I mean, with the publicity around the fight over Lovelace, all reminding people that there’s an original movie (and an energy drink) still available, haven’t they actually out-Weinsteined Weinstein?

That isn’t to say that the mom and pop aren’t getting royally screwed. We can only imagine how Weinstein would react if Pistol announced he was making a biopic of Shakespeare in Love, including recreations of scenes from the original.

There’s another potential downside to continuing to fight, and it’s one that Pistol and Treasure would probably rather not think about. If the Judge ultimately finds Deep Throat to be in the public domain, Arrow could lose a lot more than the profits for “Lovelace.”

Before we finished our call, Pistol promised me he’d call as soon as he’d decided what to do next. The movie was due to be released the following day. He had less than 24 hours to make up his mind what to do next.

By 6pm -- three hours to go, thanks to the time difference -- I can’t wait any longer. I send Treasure a message. She responds about an hour later:

"Cease and desist letters to all the pay-per-view cable outlets and iTunes. We have not yet begun to fight. After the sun goes down (around 8pm) is the best time to talk to Pistol. And he's in the mood to talk!”

Two hours later, Lovelace appeared on iTunes.

At press time, representatives for the Weinstein Company had not responded to a request for comment on this article. Dayvid Figler's book about Pistol, Treasure and the legacy of Deep Throat, published by NSFWCORP, is available from Amazon.