Various Lawsuits Trying To Avoid Admitting That Porn Classics Debbie Does Dallas & Deep Throat Are Public Domain

from the copyfraud-in-porn dept

You may recall that, last year, we wrote about 113 anonymous people sued by lawyer Evan Stone claiming that they had illegally shared copies of the classic porn film, Debbie Does Dallas. While Stone has gone on to have other problems, there's an interesting deeper copyright battle brewing over both Debbie Does Dallas, and an equally iconic porn classic, Deep Throat. As uncovered by Eriq Gardner at THREsq, two separate adult film companies recently settled a copyright infringement suit concerning the two movies... in part because neither of them probably wants to admit that the movies are actually in the public domain.

One company, Arrow, claims it holds the copyright on Deep Throat. Another company, VCX, claims it holds the copyright on Debbie Does Dallas. However, VCX started distributing Deep Throat after it saw that Arrow was distributing Debbie Does Dallas. Eventually, Arrow sued VCX for infringement, even though VCX claims it was only responding to its competitor.

But the real issue may be that neither film is covered by anyone's copyright:

Because, according to Sutton, it would raise questions about whether any of these adult film classics were really under copyright authority. Both Deep Throat and Debbie Does Dallas were both originally distributed in theaters without a copyright notice, and based on pre-1989 copyright laws, it would mean that both were in the public domain.

Faced with allegations of infringing another company's copyright, V.C.X. had no choice but to raise doubts about Arrow's hold on Deep Throat, which also meant throwing open the door that someone might challenge V.C.X.'s own hold on Debbie Does Dallas. Sutton told the Sun in 2009 that the company would have preferred reaching an agreement so that a judge wouldn't declare any of these films in the public domain.

Recently the two companies settled, and the belief is that both realized they're better off settling without allowing any court to declare the two flicks in the public domain entirely -- which it sounds like they are. For what it's worth, Arrow is trying to claim that Deep Throat was never actually published, and thus the lack of a copyright notice does not apply.

The consent accepts Arrow's legal theory that it holds copyright on Deep Throat because when the film was originally distributed in 1972, Peraino never relinquished any copies of any of the prints. The film might not have contained a copyright notice, but according to the stipulation, it didn't matter because Peraino leased the entire theater, paid all of the employees, and collected all of the revenue.

In entertainment, it's called "four-walling," and essentially means the film was never really "published." Got that? Deep Throat was never officially released theaterically. Never mind those reports about it being the most profitable movie ever with $600 million in box office receipts.

That seems like a fairly ridiculous argument, given how widely available the film is and how often it's been seen.

As for Debbie Does Dallas? Well, the agreement between VCX and Arrow forbids Arrow from continuing to distribute Debbie, even though Arrow insists that movie is definitely in the public domain... and even has a court ruling to prove it:

Because Arrow has agreed to be permanently enjoined from manufacturing, copying, or reproducing Debbie Does Dallas, even though Arrow's attorney still believes Debbie Does Dallas is in the public domain. And with good reason. There's a case from 1987 where V.C.X. defends itself from charges it failed to pay proper royalties on Debbie Does Dallas, and successfully gets a judge to acknowledge the film had been thrust "irretrievably into the public domain."

Of course, it seems like there's a potential copyfraud claim no matter what if anyone's claiming copyright over both films, which sound like they should absolutely both be in the public domain.

Filed Under: copyright, debbie does dallas, deepthroat, public domain
Companies: arrow, vcx