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August 20, 2014

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Porn nostalgia’ industry heats up in Las Vegas

The little-known "porn nostalgia'' industry has been quietly operating for years in Las Vegas. Now it's attracting attention with two local companies battling over which has the rights to distribute classic X-rated movies from the 1970s and 1980s.

Information about the local industry emerged this week in a lawsuit filed by Arrow Productions Inc. of Las Vegas against VCX Ltd. of North Las Vegas. Arrow claims VCX is infringing on its "Deep Throat" trademark by selling copies of that production.

David Sutton, president of VCX, responded to the allegations Thursday.

Sutton said he started distributing "Deep Throat" last fall because Arrow had refused his repeated requests that it stop distributing two other classic films VCX says it has the rights to: "Debbie Does Dallas" and "The Devil in Miss Jones."

If Arrow would give up those two titles, he'll give up "Deep Throat," he said.

Now, he said, the best thing for both parties to do is sit down and negotiate. Because if the lawsuit isn't dismissed, a judge could find "Deep Throat" to be in the public domain -- meaning anyone could legally copy and use it for free.

And that, he said, is why he didn't sue Arrow over Arrow's marketing of "Debbie Does Dallas" and "The Devil in Miss Jones." The last thing anyone in the porn industry wants is for a judge to rule that any of these films are in the public domain, he said.

Sutton is claiming rights to the old films under an interesting legal theory. He said the predecessor companies of both VCX and Arrow originated during an era when the mob controlled the pornography industry, and that today VCX has a "mob provenance" claim of ownership over the old films.

That may sound far-fetched. But it's well established that the Colombo crime family produced "Deep Throat" for $25,000 and made a fortune off the production; and that the mob controlled the industry in the 1970s and into the 1980s. The organized crime section of the 1986 Meese Commission report on pornography even includes several references to VCX founder Norm Arno.

In his Las Vegas Trademark Attorney blog, attorney Ryan Gile highlighted an important point about the case. He said that because pre-1989 copyright law required all works to be published with a copyright notice, one issue is whether "Deep Throat" was published without a copyright notice because, if it failed to do so, then the movie might be in the public domain.

"Of course, despite the morass of causes of actions relating to trademark infringement in Arrow’s complaint, this case is really about copyright infringement, and more particularly, whether the film 'Deep Throat' is in the public domain. After all, if the movie is in the public domain and all that VCX is doing is distributing that single work under that single title, then VCX is not using the term 'Deep Throat' as a mark to identify the source of goods and services, but merely as the genuine title of the work," Gile wrote.

Separately, Arrow suffered a setback in another case involving "Deep Throat."

Vivid Entertainment said March 10 that a Los Angeles County Superior Court judge denied Arrow's request for a temporary restraining order that would have barred Vivid from distributing "Throat," a movie loosely based on "Deep Throat."

Sutton, in the meantime, said that despite the overwhelming amount of new porn available for purchase and for free on the Internet, the classic porn industry continues to do well in its niche, with the top five titles probably grossing $5 million per year industrywide.

"We're reaching a second and even a third-generation viewer. Some (movies) have a cult following," he said.

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