Editor’s note: This is an abridged version of an article by Dayvid Figler, first published Thursday on NSFWCORP and reproduced here with permission. The full article, including the uncut interview with Ray Pistol and Treasure Brown can be found here.

lovelace2_gaggingRay Pistol calls me at midnight. He sounds like a man who’s had his fill of lawyers. As a lawyer myself, I’m frankly amazed he’s willing to go another round.

Hours earlier, a New York judge had refused to grant his injunction against Harvey Weinstein to halt the release of the movie “Lovelace.” The judge — an 83-year old veteran of the bench, first appointed by Nixon — was concerned that blocking the “Deep Throat” biopic would fall afoul of the First Amendment.

Photographers have been camped outside Pistol’s house all day. They even ambushed Pistol’s son when he returned from the store with his mother, Treasure. Freaked out, Treasure texted me: “There are actually paparazzi outside our house yelling, ‘Is that Ray Pistol’s son?’ Snap snap snap… It was creepy.”

The movie is due to hit iTunes in less than 24 hours. Pistol, a former combat marine who served in Vietnam, and who bought the rights to “Deep Throat” from the mob — has a decision to make: to appeal the ruling, and wage war directly on iTunes and other distribution platforms, or to accept Weinstein’s victory.

To keep fighting, or — for the first time in his life — to back down.

* * * *

Like so many tabloid stories involving oral sex and protracted litigation, the story of “Lovelace” began with Lindsay Lohan.

It was 2010, and production had just gotten underway on a movie called “Inferno” in which Ms. Lohan was to portray Linda Lovelace, the star of “Deep Throat.” Or perhaps more accurately, she was to portray the actress who played Linda Lovelace.

Either way, the movie never happened. Lindsay went to rehab, or committed some crimes and was headed to prison, or just couldn’t handle it. (I know you want a “D: All of the above.”) The producers of “Inferno” announced that their star was out. The world would have to wait just a little longer for a “Deep Throat, the Movie…um, the Movie.”

Or not.

In another part of Hollywood, another production company was also trying to tell the story of Linda Lovelace. This movie, entitled “Lovelace,” had nothing to do with the “Inferno” production and apparently had barely started development before the Lohan movie began to sputter. The earliest public references to “Lovelace” are in January, 2010, when the producers, Laura Rister at Untitled Entertainment, Jim Young at Animus Films and Heidi Jo Markel at Eclectic Pictures, announced they were looking for financing. No “names” had yet been publicly attached as acting talent.

This curious, but apparently not unheard of, race for first on a biopic did not go unnoticed by a Las Vegas mom and pop couple: Raymond Pistol and Treasure Brown. As owners of Arrow Productions, they had previously secured the rights to the original “Deep Throat” and the trademark of the name Linda Lovelace.

Arrow Production had given its blessing, and had signed a licensing agreement, to the producers of Inferno. The producers of “Lovelace” had no such agreement.

On November 20th, almost as soon as the LA Times reported Lohan was out of “Inferno,” Arrow received a worrying tip: Emboldened by Inferno’s struggles, “Lovelace” had started shooting, despite apparently not having secured full funding.

The race was on. A race that would ultimately lead all parties, three years later, to a New York court room.

“Inferno,” still with Arrow’s blessing, started to regroup, announcing that the actress Malin Akerman had been tapped to replace Lohan. But Hollywood’s faith in the project was already dented. As Pistol puts it, “No one wants to put money into the one that’s gonna come out second.”

On December 12, 2010, the first legal shot was fired. Charles Fries, representing the “Inferno” production team, sent an email to the producers of Lovelace. It outlined the copyright and trademark interests of “Inferno” and advised that a “cease and desist” letter would be forthcoming. It invited the “Lovelace” group to call to discuss the issue.

The reply came fast. Lonnie Ramati, acting for “Lovelace” and described in his email signature as “6 feet 9 ½ inches tall…maybe 6 feet 10 inches tall with sneakers…The Tallest Business Affairs Person on Earth,” wrote…

Subject: Re: Lovelace
You can’t trade mark Linda Lovelace.

This is total nonsense.

There are a ton of bio books, documentaries written by authors/others using that name without 1 single lawsuit from you.

You think her estate will agree with this nonsense?

The lawyers for “Inferno” sent their cease and desist anyway. This time, Ramati didn’t reply.

The silence, from both sides, lasted almost a year. Then, in November 2011, the movie industry trade press announced the actress Amanda Seyfried (who first gained prominence playing opposite Lohan in the hit movie “Mean Girls”), had been cast as the lead in “Lovelace.”

“Inferno” took another shot, this time bringing Treasure and Pistol’s Arrow Productions in the fight. On November 11, 2011, Arrow’s California lawyers sent the second cease and desist.

A month later, the Los Angeles law firm representing Nu Image, Inc. (the company which secured financing for the “Lovelace” project) responded with a two-page “screw you” replete with case citations offered as a preview to the legal issues that would form the core of the ensuing conflict.

In short, Nu Image primarily claimed that (a) Arrow doesn’t own any interest in “Deep Throat” or Linda Lovelace, because it somehow entered into the public domain under prior copyright law, and (b) it’s an absolute fair use of the subject matter to make their own movie.

Writing for his client, attorney Donald Gordon of Leopold, Petrich & Smith concluded: “All of your purported copyright claims are meritless.”

The cast and crew of “Inferno” thought they were beaten. Akerman was quoted by the Hollywood Reporter saying: “I would hope and love for it to go, but now this other movie is coming on that Amanda Seyfried did, and I kind of feel like, ‘Shit, we should have been on that. We should have done it.’”

Pistol and Treasure, however, were unbowed. While continuing to exploit their trademark in “Deep Throat” through an energy drink and a reality show on Showtime, the couple kept a keen eye on the comings and goings of the “Lovelace” project. When I interviewed him earlier this year for a NSFWCORP profile, Treasure vowed unequivocally that Arrow were ready to file suit if “Lovelace” were actually to be released.

CUT TO:

The Sundance Film Festival this past January, where it was announced that a subsidiary of the Weinstein Group was the new owners of “Lovelace.” The movie was scheduled for a release on August 9, 2013: a limited theatrical release, on iTunes and through a VOD provider.

A few months later, in July, David Bertolino — whom Arrow had licensed to produce a play based on “Deep Throat” — attended a preview screening of “Lovelace” and was shocked by how much the movie drew directly from the original “Deep Throat.” After the movie let out, he called Pistol to give him the details. According to documents subsequently filed by Arrow’s New York law firm, the producers had shot-for-shot replicated vast chunks of “Deep Throat,” including three whole scenes from the movie.

In all, about six minutes of the 60-minute film were recreated, amounting to 10 percent of the original work

Even Pistol and Treasure were shocked that so much of the original appeared in the new movie. Even so, Pistol authorized his attorneys to make one last effort to reach out to Weinstein and company. Weinstein, who had insisted that the producers of “Lovelace” indemnify him against the cost of any successful copyright lawsuit, responded with what Pistol describes as a “really, really low ball offer.” Arrow’s attorneys rejected the offer and instead began preparing their request for injunctive relief. It was filed with the United States District Court for the Southern District of New York on August 7, two days before the movie’s scheduled release.

On Wednesday of this week, Arrow’s application to stop the release of “Lovelace” finally made it to court, with the Honorable Thomas P. Griesa, presiding. 83-year-old Judge Griesa was originally appointed by President Richard M. Nixon in June 1972, the same year — the same month — that “Deep Throat” was released.

(Let’s just take a minute: A case involving the rights holders of “Deep Throat,” involving a biopic of “Deep Throat” would be heard by a judge appointed the same month and year that the movie “Deep Throat” was released, by a President — who famously called his opponents “cocksuckers” — who was eventually brought down by a man using the alias “Deep Throat.” And now the 83-old judge was watching scenes from “Deep Throat” on the bench. I’ll say this for Nixon: He plays a long game.)

Lawyers from both sides assembled in court, with Pistol awaiting news from home base in Las Vegas. He had spent the day scrambling to find the $3 million bond required if the injunction was granted. News of the hearing broke quickly in the entertainment press — as news involving soon-to-be-released Weinstein movies reliably does — and paparazzi took their places outside Pistol and Treasure’s house.

At 8pm, Entertainment Weekly ran the Weinstein-friendly headline: “Lovelace” wins in $10 million lawsuit over “Deep Throat” trademarks.

* * * *

Midnight, last night. Griesa’s judgmement is just a few hours old and Pistol is down, but not out.

We knew the Judge was going to be hesitant to completely halt release because we had to prove that money damages alone wouldn’t satisfy our claims… The judge seemed to place special emphasis on the fact that I hadn’t seen the movie for myself and how could I complain about what’s in the movie if I hadn’t seen it. I get that, but we had a reliable source [Bertolino] who filled out an affidavit which we attached. As we thought he also talked about the First Amendment, but luckily he declined to make a judgment on the merits, so that leaves open an appeal and further action.

“And do you think you’re going to win?” I ask.

A pause.

If I’m going to invest tens of thousands of dollars or more into litigation I need to get my own eyeballs on this film and make the decision. I’m sure it won’t be good, and from what I understand, it really takes shots at the original film… what I can’t get over is how much they took from the original.

I ask about the publicity benefits of a very public fight, arguably for Arrow’s other “Deep Throat” properties, but certainly for Weinstein…

I guess you could say that, but it won’t save a horrible film and our damages are already done… there’s all sorts of consumer confusion out there where people think Lindsey Lohan was simply replaced by Amanda Seyfried — people think it’s the same film, but it’s very different. And apart from Inferno we have a whole bunch of other projects that will suffer if this movie tanks. The movie of the Bertolino’s play is impacted, our brand is impacted, they really have damaged us… We may sell more movies [of the original] for the interested, but that’s impossible to predict. In the end, it’s all about protecting the brand and the economic interest and the law is likely on our side, but it won’t be cheap.

* * * *

By the time Pistol hangs up, it’s 2 am. He still seems confident of victory, in the end. I’m not sure I agree, nor am I sure it matters. Unlikely to stop the film’s release, perhaps Arrow would be better to consider this a publicity windfall. I mean, with the publicity around the fight over “Lovelace,” all reminding people that there’s an original movie (and an energy drink) still available, haven’t they actually out-Weinsteined Weinstein?

There’s another potential downside to continuing to fight, and it’s one that Pistol and Treasure would probably rather not think about. If the Judge ultimately finds “Deep Throat” to be in the public domain, Arrow could lose a lot more than the profits for “Lovelace.”

Before we finished our call, Pistol promised me he’d call as soon as he’d decided what to do next. The movie was due to be released the following day. He had less than 24 hours to make up his mind what to do next.

By 6 pm — three hours to go, thanks to the time difference — I can’t wait any longer. I send Treasure a message. She responds about an hour later:

“Cease and desist letters to all the pay-per-view cable outlets and iTunes. We have not yet begun to fight. After the sun goes down (around 8 pm) is the best time to talk to Pistol. And he’s in the mood to talk!”

Two hours later, “Lovelace” appeared on iTunes.

Adapted from “Gagging Weinstein,” published on NSFWCORP. Dayvid Figler’s book about Pistol, Treasure and the legacy of “Deep Throat,” published by NSFWCORP, is available from Amazon.