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of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed “all the writings of an author,” did not bespeak of an obscenity exception to copyright protection.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.
–Ann Bartow
Please allow me to ignore the general Constitutional argument so that I may concentrate on the policy effects of not giving porn I.P. protection.
George Orwell pays a high marginal cost of production when he makes a book like 1984; if nothing else he is forgoing income that could be earned working at McDonalds. We give Orwell a property right in his work so that he will have an incentive to create it in the first place. If any person with a photocopier was able to reproduce Orwell’s books then Orwell would find it difficult to recover the marginal cost of production.
As policy makers, we understand that there is a trade-off between maximizing the production of existing works and creating incentives to produce new works in the future. Once 1984 as been written, more copies of 1984 would be produced by removing Orwell’s copyright; but if we did not first give Orwell a copyright he would never have produced 1984 in the first place. So at the end of the day the best way to maximize the number of copies of 1984 is to go ahead and give 1984 copyright protection.
There is little incentive created by copyright protection where the cost of production is low. For example if it cost $100 to produce DVD-XXX and you can expect a return of $3,000 on your investment in the absence of copyright protection, then you would probably produce DVD-XXX even in the absence of an established property right. The fact you could make $10,000 with a copyright on DVD-XXX is of no consequence; you would still have a low marginal cost coupled with a high rate of return even without the copyright. Therefore the rational actor will still produce DVD-XXX even without property right protection.
Recall the Orwell example above, once a work is in circulation, the number of copies produced is maximized by withholding copyright protection. If pornography would still be produced in the absence of I.P. protection [and I believe it would], then withholding I.P. protection will only cause more porn to be produced. Paradoxically, the best way to reduce the amount of porn in circulation may be to give it copyright protection.
The thing that I have never understood about porn is that, in most of it, it is obvious that a person is being hurt. Oft times they are struggling and crying while being choked or struck.
How can they possibly justify the commission and recording of a criminal act being copyrighted for the benefit of the perp?
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