Court Wonders If Porn Can Even Be Covered By Copyright

from the interesting-legal-questions dept

Fri, Nov 4th 2011 7:26am — Mike Masnick

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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Filed Under: copyright, porn

27 Comments

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Ima Fish (profile), 4 Nov 2011 @ 7:44am

The issue discussed by those cases is not whether pornography can be covered by copyright, but whether illegal pornography can be covered by copyright.

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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Anonymous Coward, 4 Nov 2011 @ 7:46am

Reminds me of the copyright on "Happy Birthday."

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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Anonymous Coward, 4 Nov 2011 @ 7:53am

If you take all the porn off the Internet, there would only be one website left and it would called www.bringbacktheporn.com.
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David Good (profile), 4 Nov 2011 @ 7:59am

No, this is more like recipes
This is like how recipes are treated under copyright. You cannot copyright a recipe, but you can copyright a cookbook or collection of recipes. That is probably how porn will work out - you cannot copyright a position because prior art exists. But you can copyright the combination of a script, footage, etc.
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Anonymous Coward, 4 Nov 2011 @ 8:02am

Re:
You got it.

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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Anonymous Coward, 4 Nov 2011 @ 8:22am

"Obscenity cases are fairly rare, and rarely won outright."

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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Ninja (profile), 4 Nov 2011 @ 8:33am

Home made stuff certainly are public domain (I chuckled with the irony here) but I think the porn industry would disagree.

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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Anonymous Coward, 4 Nov 2011 @ 8:35am

In light of this...
...I have copyrighted my penis, and will be demanding royalties from any partner who downloads it.

Step 2: ????

Step 3: Profit!
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Anonymous Coward, 4 Nov 2011 @ 8:54am

Non-Issue
Of course porn is covered by copyright. It's a an original work fixed in a tangible expression, just like any other picture or movie. That the copyright act doesn't say anything about porn doesn't "lean towards it being covered," it makes it covered. Contrast with the Lanham Act and trademarks, which expressly prohibits registration of scandalous marks.

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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A Guy (profile), 4 Nov 2011 @ 8:54am

Re: In light of this...
Step 2: Find a person who will "download" your penis into their vagina. Sue that person for illegal downloading and call it 'willful.'

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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Anonymous Coward, 4 Nov 2011 @ 10:33am

Re:
Mr Little got nailed by the "most conservative jurisdiction" trick used by certain anti-porn Christians to get these judgements. His business was in California, and yet he was prosecuted in Florida. Sad, really.
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Kirion, 4 Nov 2011 @ 11:17am

Re:
What is not obscene pornography? When they do it in clothes? Or japanese one, with pixels?
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Karl (profile), 4 Nov 2011 @ 11:27am

Porn copyrights
It's an interesting thought experiment. The question is not whether "pornography" is illegal, but whether "obscene material" (which is unlawful) can be covered by copyright. That is, can you copyright unlawful expression?

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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Liz (profile), 4 Nov 2011 @ 12:16pm

Re: Re: In light of this...
You're assuming his copyright was intended for a specific market.
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Eric Goldman (profile), 4 Nov 2011 @ 3:58pm

Ann Bartow has updated her work in this area. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825946 Eric.
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Anonymous Coward, 4 Nov 2011 @ 6:15pm

I've got the perfect plan. I'm hoping the courts will find "obscene materials" are not copyrightable. Then all we gotta do is find a few extreme towns, think Mormon, Amish and that ass-clown from Westboro Baptist Church. Sit them down and show them how every Hollywood movie and every major label album has something they find obscene.. BAM! Guilt-free and legal file sharing.
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Karl (profile), 4 Nov 2011 @ 6:24pm

Re:
Ann Bartow has updated her work in this area.

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:

[P]ornography is a very lucrative product for mainstream American corporations that are unlikely to open brothels. They will sell only copyrighted sex to their clients. Pornography is prostitution sanitized by physical remoteness from the commoditized bodies and by the independent contractors who provide companies like Google and General Motors with plausible deniability when people are harmed during its production.

(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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Rekrul, 4 Nov 2011 @ 6:27pm

I know it will probably never happen, but I long for the day when the courts throw out the concept of "obscenity" and simply focus on what is and isn't illegal.
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That Anonymous Coward (profile), 5 Nov 2011 @ 12:15am

Re: Re: In light of this...
G.I.R.L. - Guy In Real Life?
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chris, 7 Nov 2011 @ 10:51am

Re:
Instead of getting bogged down in case law, why not just go to the core of copyright's existence. At the core, laws are made to encourage or discourage a certain behavior. The purpose of copyright is to encourage the production of art. We simply have to ask ourselves, is this something we want to promote or not.

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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chris, 7 Nov 2011 @ 10:59am

Re:
But that's a catch 22 since what is and isn't legal derives from people's opinion's about obscenity. Don't want to swallow that pill? Join the despotists.
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Rekrul, 9 Nov 2011 @ 7:30am

Re: Re:
But that's a catch 22 since what is and isn't legal derives from people's opinion's about obscenity.

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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John Mitchell (profile), 18 May 2012 @ 11:52am

Re: Obscene not the same as illegal
It is incorrect to say that "obscene pornography" is illegal. Obscene material is not protected by the First Amendment to the U.S. Constitution (so held a 5-4 majority in the Supreme Court), but whether it is illegal depends on what specific jurisdiction you are in, what jury is judging it, and when. One court held that what may have been obscene 9 months earlier it not the same as what is obscene today, since obscenity is judged by the "contemporary" community standard, which may change rapidly.
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John Mitchell (profile), 18 May 2012 @ 11:55am

Re: No, this is more like recipes
Ah, but you can copyright a recipe. See John T. Mitchell, Copyrighted Recipe for Scrambled Eggs, 2007 (Trademark Registration No. TX0007357813). And, "prior art" relates to patents, not copyrights. The devil is in idea/expression dichotomy.
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r0j9, 4 Aug 2012 @ 1:48am

But what if you were screwing a contracted pornstar in real life instead of wanking to her pixels?

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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Anonymous Coward, 28 Mar 2013 @ 9:41pm

Response to: Eric Goldman on Nov 4th, 2011 @ 3:58pm
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A. Scott Fulkerson, 30 Apr 2017 @ 7:02pm

Porn Copyright
Porn can be copyrighted insofar as it isn't criminal contraband. However, under U.S. federal law Porn becomes criminal contraband the moment it is disseminated on the Internet, because federal criminal law makes it unlawful to transport obscene materials into or within the United States via the Internet or any other mode of transportation- wherefore such materials so transported are criminal contraband. Therefore the issue is moot for purposes of Internet porn. The second it's posted to the Internet you loose U.S. copyright protections.
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