Lovelace vs Deep Throat: Defining Fair Use

I came across a particularly interesting case today involving the makers of the films “Lovelace” and “Deep Throat.”

Not only did the Lovelace vs Deep Throat case require an octogenarian U.S. federal judge to sit through over a full hour of pornography, it also served to illustrate some of the finer points of fair use law. I’ll share it with you, but first, we need to discuss what constitutes fair use and why this area of the law is important.

Why do we have fair use?

While copyright law is intended to prevent an author’s work from being used without his or her permission, sometimes, it is desirable for us, as a society, to allow a limited degree of copying. Parody is a good example of this type of situation. Collectively, we feel that authors and other media producers should have the right to parody other works, but to do so requires a significant degree of copying. Without fair use laws, this would be impossible.

What constitutes fair use?

Officially, there are four factors that judges and juries consider when determining a legitimate example of fair use. The definition is relatively malleable, and only via decision in court can something definitively be considered fair use.

1. The purpose and character of use – As outlined in 1994 by the Supreme Court, “transformative” use is generally accepted to be fair use. This means that the material taken from the original work has been “transformed” by the addition of new meaning or expression or that value is added as a whole to the material by its presentation in a new light. This argument contains a fine line: Simply adding new meaning or expression to the material or presenting it in a new light isn’t enough, value must be added. Because value is subjective, it can be difficult to predict how these cases will play out.
2. The nature of the work – In simple terms, factual works have less protection under copyright law than fictional ones. This makes sense, in that the dissemination of facts benefits the public. While we generally agree that it is fair to enforce copyright protections for “Harry Potter,” we also generally agree that it wouldn’t be fair to extend the same protections to the depth of the Grand Canyon.
3. The amount and substantiality of the portion taken – One particularly common myth held by laymen about copyright law is that there are defined limits on how much of a copyrighted work can be freely taken. While a smaller portion is generally safer to take, a particularly small portion or exposure can be considered “de minimis,” meaning that it is too small to matter, even a tiny portion can violate copyright law if it is the right portion.
4. The effect upon the potential market – Because copyright law is dedicated, at least in part, to preserving the ability of a copyright holder to make money off the work, the effect of the copied material on the potential market for the original work is also considered. Note the key word “potential.” The copyright holder need not even be interested in using their work in a particular way for its use in that way to be a breach of copyright law.

Lovelace vs. Deep Throat
The case that prompted this post is a very reasonable decision by U.S. District Judge Thomas Griesa to rule that the film “Lovelace” does not infringe upon the copyright held on “Deep Throat,” a pornographic film. “Lovelace” is a biopic film that depicts the life of Linda Lovelace, the primary actress in the latter film.

Griesa wrote in his decision that the heart of “Deep Throat” is “a pornographic film that in particular, focuses on one type of pornographic act,” while “Lovelace,” though it includes elements from some of the scenes in “Deep Throat,” is a clear case of transformative use. Considering the two films’ obviously different tone, focus and target audience, I am inclined to agree.

As Chairmen of the Sports & Entertainment Practice Group for Scarinci Hollenbeck, I find the subject of fair use and copyright fascinating. If you are like me and interested in this subject, check out some of my previous posts:

• The Fair Use Defense for Copyright Copying: Fair Play?
• Jersey Shore’ Producer Sued for Unfair Pay
• Cincinnati Bengals May Have Violated Fair Labor Standards Act
• Seth MacFarlane Accused of Copyright Infringement
• What are the repercussions of copyright and trademark violations?
• Is Copyright Infringement an Issue in Hollywood?