Court Wonders If Porn Can Even Be Covered By Copyright
from the interesting-legal-questions dept
Following on our story about questions concerning the copyright status of both Debbie Does Dallas and Deepthroat, we're pointed to a copyright lawsuit concerning porn, in which the judge notes that in many parts of the country, it's actually an open question if porn can even be covered by copyright. The case involves Liberty Media, and I'll have another post later about the more pertinent pieces of the lawsuit, but for now, I'll just show the footnote discussing this, in which it's pointed out that there are some doubts about whether porn is eligible for copyright:It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was "effectively unavailable for pornography" until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of "obscene materials," such as the films at issue there, and rejecting the defendant’s affirmative defense of "unclean hands"). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that "[p]ragmatism further compels a rejection of an obscenity defense" because "obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether"). Compare Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business," holding that the films were "obscene" and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are "obscene" is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008). This issue, however, is not presently before the Court and the Court expresses no opinion on it here.My guess, to be honest, is that most courts would find that porn can, in fact, be covered by copyright. The fact that the copyright act makes no statement either way tends to lean towards it being covered. Furthermore, given the ruling in the Fifth Circuit, and the failure of Congress to then jump in and "correct" it, if that ruling went against Congress' belief, provides evidence that, in general, copyright protection would be considered available for original pornography. That said, it would make for an interesting legal argument in any of the many ongoing copyright troll lawsuits, if someone could come up with compelling legal arguments to the contrary.
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The code word is "obscene." Pornography is legal. Obscene pornography is not. Obscene is a legal term of art, not a mere description or a genre.
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Further, you have to remember that obscenity is a slippery term, mostly because it is judged by community standards in the location where the case is brought, and not as a global "pan-US" judgement. That is to say what is obscene in Salt Lake City (by judgement of a court) may not be obscene in Los Angeles (by judgement of a court). It is one of the reasons why most obscenity prosecutions are hinged on postal inspectors or law enforcement in the most conservative of jurisdictions order videos by mail,and prosecuting where the video is received, not where it was made.
You can see the case of Paul F. Little as an example.
Obscenity cases are fairly rare, and rarely won outright.
Since copyright is automatic at this point (no registration required), it would be pretty hard to say something ISN'T copyright. If you could prove it was obscene, perhaps it would not be copyright, but then you also couldn't do anything with it, because it would be illegal.
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Re: Obscene not the same as illegal
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If I go out and register a copyright on the missionary position, can I act like that company filing lawsuits against people with wireless routers and go sue couples for the copyright infringement going on in their bedrooms?
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No, this is more like recipes
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Re: No, this is more like recipes
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I was going to say, tell that to Max Hardcore, until I looked up Paul F. Little. You're obviously a fan! LOL j/k
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Personally, I'd be fine with courts refusing to recognize porn copyright on that basis, though it is really a question for congress.
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But there's an interesting point here. Wouldn't be fair if the copyright belonged to the ones performing? I mean, imagine [porn star name here] decides to share one of her videos. Her producer could sue her into oblivion because the copyright belongs to the company. I don't see much fairness here..
I chuckled multiple times while writing this. God bless all the girls that go wild for the cameras ;)
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In light of this...
Step 2: ????
Step 3: Profit!
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Re: In light of this...
Finally, never get laid again because women will now hate you.
(Replace girl with websites and 'you' with legacy content industry to see their strategy)
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Non-Issue
The cases against porn cited in the quote above just show that a court might not enforce certain rights that copyright provides (eg. right of distribution), but because of reasons beyond copyright. That doesn't mean the copyright is invalid in any way, it just means a competing principle trumps ones rights in the work. Think of certain newsworthy photographs. A photo would be covered by copyright, but first amendment concerns might trump enforcement of those rights in particular situations. Again, doesn't mean the photo isn't covered by copyright.
The home-made stuff sure is interesting and comes up all the time with celebrity sex tape issues. They too are covered by copyright.
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Porn copyrights
For example: Suppose your adult film is declared obscene in Florida (and, given Florida's abominable history of free speech, this is not really a stretch). Now, somebody in Florida downloads a torrent of your film. Are they committing copyright infringement? That is, would you have a legal basis for suing them?
If you read the letter of the law, then the answer is probably "no." Copyright protects speech that is disseminated to the public for commercial purposes. Since your film cannot, legally, be disseminated to the public there at all, they are not committing copyright infringement there.
But I think that, in general, any court would say it is. (For one thing, copyright is Federal law, so it probably trumps any jurisdictional determination of obscenity, but that's in itself a tricky question.)
More importantly - and this opinion may surprise you - I believe it should be. Not because of any love I have for copyright (I don't), but because if a court determines that it's not copyrightable, they're essentially saying that it's not "expression."
That in itself is even worse than excessive copyright law. We've already seen the lengths that governments occasionally go to in order to quash speech it doesn't approve of (think: the Meese Commission). We do not need any more "exceptions" to the First Amendment than we already have.
Of course, if you accept that, then you are forced to conclude something that some here might not like: that even expression which has been found to be unlawful in a court of law is still expression, and deserves at least some protection under the Constitution.
Kind of shows how wrong people are when they claim the First Amendment "doesn't apply" to e.g. copyright seizures.
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This type of nonsense is exactly what I was concerned about.
First, she goes through copyright law, and shows how it is a "content-based" regulation of speech, rather than "content-neutral." It goes into great detail on why the DMCA's "notice-and-takedown" system favors the copyright holder, and "silences the speaker" (her words).
But is she criticizing copyright? Not at all. She is celebrating the fact that copyright is a content-based restriction of free speech, yet is allowed under the First Amendment. For, as she claims, if copyright is not inconsistent with free speech, then laws against pornography shouldn't be, either.
Along the way, she makes a lot of very inaccurate assertions about the porn industry(a business which she admits she isn't very familiar with). She says "a camera in the room" turns "prostitution" into "protected expression" by way of copyright. She cites long-debunked theories by Second Wave feminists (such as Catherine MacKinnon, a participant in the aforementioned Meese Commission, and author of an "anti-pornography" law that was found to be unconstitutional), who even modern feminists don't listen to anymore. She uses images from advertising to show the "harm" to the public the "commodification of sex" can cause. And she blames everyone even remotely connected to it.
Here's a sample:
(If this sounds exactly like A.C.'s saying Google "hides behind" the DMCA in order to have "plausible deniability" of infringement... well, that's because it is.)
Now, to be fair, she is not calling for laws that outright ban any kind of pornography. She is only advocating that pornography not be covered by copyright. But still, her argument is that pornography is "harmful expression," and thus exempt from (some) Constitutional protections. She is using copyright law to make an end-run around the First Amendment.
This is exactly the sort of "slippery slope" that reveals how much damage any exception to the First Amendment, no matter how well-intentioned, can cause.
And ultimately, it is a persuasive argument against copyright law, not against pornography.
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Response to: Eric Goldman on Nov 4th, 2011 @ 3:58pm
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That's what I mean, I want to see them do away with the "I'll know it when I see it" crap and judge legality by the normal laws on the books.
In other words, if your video contains only adults and they aren't committing any crimes on camera, then that video should be legal, no matter how strange, disgusting or offensive it is.
Obscenity is just a legal excuse for people to censor what they don't approve of. 100 years ago, Playboy would have been declared obscene. 50 years ago, the Saw movies would have been considered obscene.
Shouldn't the law be based on actual crimes, rather than an uptight person's opinion of what should and shouldn't be legal?
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Is she a pussy pirate because if she hadn't screwed you u might have made corporation xyz some monies in advertising or maybe even subscription...yeah right! I don't even know how this pricks make money with tube sites now. Whats going to happen? Poor girls will have to screw off camera for money. And the fans? They will have to enjoy an uncountable amount of surplus since the invention of the 30 minute camera. Sniff.
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Porn Copyright
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