Intellectual Property Law

Copyright Law and Pornography

By Siva Vaidhyanathan

Until 1979, copyright protection was effectively unavailable for "obscene" pornography. Then in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.), cert. denied, 445 U.S. 917 (1979) and Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.), cert. denied, 459 U.S. 826 (1982), two courts expressly found obscenity protected by copyright law. Courts are not in compete accord on this issue as William Patry noted at his blog: In the SDNY, then Judge Martin refused to grant a preliminary injunction and a pretrial impoundment and seizure order for movies he believed to be obscene writing, "Given the clearly criminal nature of plaintiff's operations, it is self-evident that the Court should not use its equitable powers to come to the aid of plaintiffs and should invoke the doctrine of clean hands and leave the parties where it finds them," Devils Films, Inc. v. Nectar Video Corp., 29 F. Supp.2d 174, 175 (S.D.N.Y. 1998). As Patry also noted, in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 24171 (S.D.N.Y. Dec. 1, 2004), Judge Baer decided to follow Mitchell Brothers, writing: In its well-reasoned and scholarly opinion, the Fifth Circuit reviewed the history of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed "all the writings of an author," did not bespeak of an obscenity exception to copyright protection. The Fifth Circuit further reasoned that the existence of other restrictions in the related areas of trademarks and patents, together with the need for a uniform system of copyright, which could be fragmented by the community-driven obscenity standard, counseled against finding an obscenity exception. Finally, the Court was reluctant to stifle creativity and enlist "the judgment of government officials regarding the worth of the work." Congress never addressed this issue in the copyright, and with the exception of Bill Patry, copyright scholars haven't had much to say about pornography specifically, even though many high profile copyright cases (such as this recent one and this golden oldie) involve pornographic content. I think studying and theorizing the roles that copyright law plays in the production, distribution and consumption of pornography would be useful and instructive in many regards (as I noted here and here), but I'm not sure how likely it is to happen. Some law profs think that pornography is socially beneficial (see e.g. this and this), but I disagree (e.g. here and here) as do others. Because the IP Clause of the U.S. Constitution authorizes copyright law only to the extent that it promotes the progress of science and the useful arts, one might expect the copyrightability of pornography to be more controversial than it has been so far, given the incentives that copyrights provide and the government resources that are required to sustain the copyright legal regime. That both policy makers and legal scholars choose to ignore these issues gives pornography a privileged position with respect to more interrogated categories of created works such as mainstream music and non-pornographic movies. I'm interested in any opinions about whether pornography should be copyrightable, and why so many people are willing to assume that it should be without reflection. Feel free to comment here or at Prawfsblawg, where this is cross-posted.

Full post as published by SIVACRACY .NET on June 30, 2007 (boomark / email).