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.

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  • identicon
    out_of_the_blue, 3 Nov 2011 @ 7:24am

    This is pretty literally red meat for your fanboy-trolls.

    As they're so fond of using: cue puerile comments in 3..2..1..

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Nov 2011 @ 8:16am

      Re: This is pretty literally red meat for your fanboy-trolls.

      I'm rubber and you're glue.....

      reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 4 Nov 2011 @ 5:50am

      Re: This is pretty literally red meat for your fanboy-trolls.

      Yet, the first person to comment, not making any kind of real point, yet typing 2 sentences anyway. It''s almost as stupid as those people who insist on typing "first" as if that's some kind of an achievement.

      Oh, and you really need to work out what "troll" means. Calling an idiot out for idiocy is not trolling...

      reply to this | link to this | view in chronology ]

  • icon
    The eejit (profile), 3 Nov 2011 @ 7:25am

    Mike, what have these porn films got to do with the price of fish?

    ...Oh.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2011 @ 7:33am

    Copyfraud is the Masnick hot term of the month. That means every time Mike uses Copyfraud in a story, you need to knock back a double expresso. Basically, nobody on Techdirt will sleep for a month.

    reply to this | link to this | view in chronology ]

  • identicon
    Gaurav, 3 Nov 2011 @ 7:37am

    Such companies will keep on Doing Dallas to the public as long as they are hiring lobbyists to Deep Throat the politicians.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2011 @ 8:08am

    This thread is worthless without full motion video clips ;)

    reply to this | link to this | view in chronology ]

  • identicon
    TheStupidOne, 3 Nov 2011 @ 8:54am

    Free Porn!

    So I can download both of these films without fear of any consequences? Sounds like a young man's dream come true. Now I just gotta keep it hidden from my parents and girlfriend ...

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2011 @ 10:49am

    I'm secretly hoping that this somehow turns into a patent dispute so I can make a "Debbie Does East Texas" joke. Can sex positions be patented? What about techniques for filming porn?

    reply to this | link to this | view in chronology ]

  • identicon
    Justin Levine, 3 Nov 2011 @ 10:52am

    Copyfraud is a very underreported issue. But here is another example...

    Similar copyfraud claim going on with a Phillip K. Dick story. Dick's estate is trying to claim that because a story was first published without his consent, it isn't in the public domain. Background here:

    http://www.courthousenews.com/2011/10/31/41045.htm

    reply to this | link to this | view in chronology ]

    • icon
      Chosen Reject (profile), 3 Nov 2011 @ 11:10am

      Re: Copyfraud is a very underreported issue. But here is another example...

      Also, Steamboat Willie is in the public domain. Disney's lawyers have even threatened to sue a copyright expert that dared to confirm that fact.

      By all means, torrent away!

      reply to this | link to this | view in chronology ]

      • icon
        Rikuo (profile), 3 Nov 2011 @ 12:00pm

        Re: Re: Copyfraud is a very underreported issue. But here is another example...

        And with that link you've provided, Disney could just go along to the payment processors and say "OMG, there's a link on this blog, to copyrighted content, stop processing money for this evil evil man!", if E-PARASITES passes.
        What was that? Steamboat Willie was released in 1928? So by calculations...duh duh duh carry the one...yep, its in the public domain! Of course, E-PARASITES doesn't care about that. It's all about the private right to action.

        reply to this | link to this | view in chronology ]

  • identicon
    NullOp, 3 Nov 2011 @ 11:34am

    DL

    Hey, where can I download those films?

    reply to this | link to this | view in chronology ]

  • identicon
    medlaw, 3 Nov 2011 @ 12:05pm

    http://www.medlawplus.com

    I don't think one can absolutely rely on the fact that a pre-1989 movie was initially distributed without a copyright notice in assuming it is in the public domain. I think there are opportunities to cure this error by later act under the 1976 Copyright Act.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Nov 2011 @ 3:16pm

    My legit VCX DVD of "Debbie Does Dallas" has a "(c) VCX, INC. 1979" at the bottom of the screen throughout the whole movie. I also have it on tape from VCA (guess they're staying out of this).
    Speaking of "Debbie Does Dallas", anyone else notice that in the first movie Debbie's last name is Benton but in the next one it has inexplicably changed to Benson?

    reply to this | link to this | view in chronology ]

    • icon
      Butcherer79 (profile), 4 Nov 2011 @ 3:03am

      Re:

      erm, you may have watched this too many times, and probably for the wrong reasons if you're taking notice of last names.
      I'm also not sure that porn is well known for it's continuity, more for assisting in bashing one out.

      reply to this | link to this | view in chronology ]

  • identicon
    fb39ca4, 3 Nov 2011 @ 10:06pm

    links

    Where can u download these, if they ate public domain?

    reply to this | link to this | view in chronology ]

  • identicon
    Richard, 6 Nov 2011 @ 9:04pm

    Re: http://www.medlawplus.com

    From what one understands, mere public performance of a work (i.e. showing a movie in a public theater) does not constitute publication for the purpose of copyright (at least not in the US.) In addition, a work that is not published may retain copyright in circumstances where formalities (such as copyright renewal, registration and/or notice requirements) are not followed.

    According to page 172 of Stephen Fishman's book _The Public Domain_ (Nolo, 2010), the distribution of films in the pre-VCR era would usually involve a distributor producing multiple copies of a film that would be made available via its "exchanges" (branch offices) for rental to theater operators. In addition, once copies of a film have been made available to theater operators via a distributor's exchanges, the consensus is that the film can be considered published for the purpose of copyright.

    With regard to the publication of US (not foreign) works between 1978 and March 1, 1989 without a copyright notice, the lack of a copyright notice could be corrected if the copyright holder registered the copyright within five years of the work's publication, according to Peter Hirtle's copyright terms chart.

    reply to this | link to this | view in chronology ]


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