Copyright

by Mike Masnick


Filed Under:
copyright, porn



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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  1. icon
    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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