Opinion
Case Number 2:09-cv-0737-PMP-PAL
10-18-2011
ARROW PRODUCTIONS, LTD., a Nevada Corporation, Plaintiff, v. V.C.X. LTD., a Nevada Corporation, DAVID H. SUTTON, an Individual and DOES 1-10, Defendants.
CLYDE DeWITT LAW OFFICES OF CLYDE DeWITT, APC ALLEN LICHTENSTEIN, ESQ. By: Clyde DeWitt Counsel for Plaintiff, Arrow Productions, Ltd. TIMOTHY C. RILEY LAW OFFICES OF TIMOTHY ROBERT B. POOLE ROBERT B. POOLE, PC By: Robert B. Pool Counsel for Defendants, V.C.X., Ltd. And David H. Sutton
Nevada State Bar No. 9791
Law Offices of Clyde DeWitt,
A Professional Corporation
Allen Lichtenstein
Nevada State Bar No. 3992
Counsel for Plaintiff,
Arrow Productions. Ltd.
Hon. Philip M. Pro, United States District Judge
Hon. Peggy A. Leen, United States Magistrate Judge
STIPULATION, FINDINGS THEREON, ORDER AND FINAL JUDGMENT
It is stipulated that:
PARTIES
Arrow Productions, Ltd. ("Arrow") is a corporation, organized and existing under the laws of the State of Nevada, with its principal office in the City of Las Vegas. Clark County, Nevada.
Raymond Pistol ("Pistol") is an individual, a resident and citizen of Clark County, Nevada and sole owner, officer and director of Arrow.
Arrow and Pistol are sometimes referenced herein together as the "Arrow Parties."
VCX, Ltd. ("VCX") is a corporation, organized and existing under the laws of the State of Nevada, with its principal office in the City of North Las Vegas, Clark County, Nevada.
David H. Sulton ("Sutton") is an individual, a resident and citizen of Clark County, Nevada and sole owner, officer and director of VCX.
VCX and Sutton are sometimes referenced herein together as the "VCX Parties."
The Arrow Parties and the VCX Parties are sometimes referenced herein together as the "Parties".
THE INTELLECTUAL PROPERTY INVOLVED
Deep Throat
Deep Throat, also known as Deep Throat Starring Linda Lovelace, is a motion picture, first exhibited theatrically in 1972 and the first in a series of motion pictures including "Deep Throat" in the title. The first Deep Throat motion picture is the subject of Document Number V1705P538 in the United States Copyright Office, Date of Recordation, January 19, 1979.
Deep Throat® also is a trademark because it identifies a series of motion pictures including "Deep Throat" in the title. The Deep Throat® mark is registered with the United States Patent and Trademark Office, Registration Number 2993913; Registration Date September 13, 2005.
Linda Lovelace® also is a trademark because it identifies a character in series of motion pictures including "Deep Throat" in the title. The Linda Lovelace® mark is registered with the United States Patent and Trademark Office, Registration Number 3691818; Registration Date October 6, 2009.
The above copyright and trademark rights involving "Deep Throat" are collectively referenced herein as the "Deep Throat Rights."
Debbie Does Dallas
Debbie Does Dallas is a motion picture, first exhibited theatrically in or around 1978. That motion picture is the subject of Document Number PA0000194646 in the United States Copyright Office, Date of Recordation October 14, 1983.
Debbie Does Dallas® also is a trademark because it identifies a series of motion pictures including "Debbie Does Dallas" in the title. The Debbie Does Dallas® mark was registered by Arrow with the United States Patent and Trademark Office, Registration Number 3260989; Registration Date July 10, 2007
The above copyright and trademark rights involving the motion picture Debbie Does Dallas are collectively reverenced herein as the "Debbie Does Dallas Rights".
UNDERLYING FACTS
1. Louis Peraino ("Peraino") in 1972 hired Gerrard Damiano to direct the movie Deep Throat for him. Accordingly, under the copyright law, Deep Throat was a work for hire, made by Peraino at his personal expense. The author and therefore, original copyright owner therefore was Peraino, individually.
2. Peraino's agent erroneously registered the copyright to Plymouth Distributors, a corporation that did not then, in 1972, exist; in fact Plymouth Distributors was a fictitious business name of Peraino's.
3. Peraino continued to personally own the copyright on Deep Throat from then until 1996, although he licensed it to a number of corporations that he owned. Those licenses were not in writing. One such licensee was Plymouth Distributors, Inc., a New York Corporation, which was chartered in 1976; the license expired by operation of law in 1981 when the corporation discontinued operation.
4. In 1996, Arrow Productions, Ltd., a Nevada corporation and the plaintiff in this case ("Arrow"), purchased the copyrights from Peraino by written assignment from Peraino to Arrow Productions, Ltd.
5. Deep Throat was exhibited in theaters beginning in 1972, first in New York City and then in Los Angeles (Hollywood), California. According to the testimony of Charles Bernstein, which the parties credit, Peraino never relinquished copies of any of the prints to Deep Throat until the 1980s: and those prints each included a copyright notice. Before then, the prints may or may not have included a copyright notice but it was of no moment because Peraino leased the entire theaters, paid all of the employees and collected the revenues, remaining in control of the prints. That process is known in the theater business as "Tour walling."
6. Thus, contrary to what VCX believed, Deep Throat was not put into the public domain by virtue of circulating prints without a copyright notice. While there may have been prints of Deep Throat that were circulated without a copyright notice, those were amongst the many unauthorized prints that were made by the film lab without knowledge or authorization of Peraino or his corporation and sold illegally.
7. Accordingly, Arrow owns a valid copyright on the motion picture Deep Throat.
CONSENT DECREES
I.
The Arrow Parties, along with their owners, directors, officers, employees agents successors and assigns and anyone working in concert with any of them, are permanently enjoined from:
1. Manufacturing, copying or otherwise reproducing or making any derivative work of Debbie. Does Dallas in any tangible medium, whether now known or contemplated, including but not limited to DVD, videotape, and magnetic storage;
2. Granting any license or accepting any licensing fee from any source forDebbie Does Dallas.
II.
The VCX Panies, along with their owners, directors, officers, employees agents successors and assigns and anyone working in concert with any of them, are permanently enjoined from:
1. Manufacturing, copying or otherwise reproducing or making any derivative work of Deep Throat in any tangible medium, whether now known or contemplated, including but not limited to DVD. videotape, and magnetic storage;
2. Granting any license or accepting any licensing fee from any source for Deep Throat.
DISPOSITION OF THE ACTION
The court will retain jurisdiction of this case for the limited purpose of enforcing the consent decree. Otherwise.
1. The allegations in the complaint concerning the ownership and validity of the copyrights and trademarks associated with the motion pictures Deep Throat and Devil in Miss Jones are dismissed without prejudice.
2. The remainder of the allegations are dismissed with prejudice.
3. The parties shall bear their own costs and attorneys fees.
So Stipulated:
Arrow Productions. Ltd.
By: Raymond Pistol, President
____
Raymond Pistol, Individually
V.C.X., Ltd.
By: David M. Sutton, Presidint
____
David M. Sutton, Individually
ORDER AND JUDGMENT
It is so ordered.
THIS IS A FINAL JUDGMENT.
____
UNITED STATES DISTRICT JUDGE
Approved:
CLYDE DeWITT
LAW OFFICES OF CLYDE DeWITT, APC
ALLEN LICHTENSTEIN, ESQ.
By: Clyde DeWitt
Counsel for Plaintiff,
Arrow Productions, Ltd.
TIMOTHY C. RILEY
LAW OFFICES OF TIMOTHY
ROBERT B. POOLE
ROBERT B. POOLE, PC
By: Robert B. Pool
Counsel for Defendants,
V.C.X., Ltd. And David H. Sutton