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Saturday, June 30, 2007

Copyrights and Pornography

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of the copyright legislation and found that all-inclusive language of the Copyright Act of 1909, 17 U.S.C. § 34 (1970) (repealed), which encompassed "all the writings of an author," did not bespeak of an obscenity exception to copyright protection.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.

Posted by Ann Bartow on June 30, 2007 at 06:42 AM in Gender | Permalink


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Prof. Bartow, if the policy goal is elimination of pornography with cruel content, then I would think affording copyright protection would not matter were the producers of such material criminally prosecuted. I am in the process of writing a law review note on this topic, and most of the justifications I keep seeing for making obscenity a bar to copyright protection involves porn with activity that is obviously illegal (as opposed to porn that may be deemed obscene in one community but not another). For example, Mr. Markel's note discusses the public policy problems with allowing copyright protection of child pornography, but no child pornographer is ever going to move on an infringer for fear of exposing his illegal acts. Material like "Behind the Green Door" where abuse of the actors is alleged is more problematic being that the illegal acts are not necessarily obvious, but it seems to me that criminal prosecution is the way to go in preventing such abuses rather than charging the Copyright Office with determining something that the Supreme Court spent fruitless years attempting to define. If anything, granting copyright protection may bring abuses further into the light so they can be prevented in the future.

Posted by: Christopher McDavid | Oct 7, 2007 5:08:34 PM

So the theory is that we reward producers of "less bad" pornography with a copyright, in order to shift incentives toward that style instead of "more bad" pornography? That's an interesting theory, though I am skeptical that differential copyright would have that effect.

I am also skeptical that stripping copyright will discourage the viewing of "more bad" porn. While less might get made, distribution will be broader for that which does get made - so long as the demand is there, the only shift will be the variety, and not total consumption.

Posted by: Michael Risch | Jul 1, 2007 10:42:06 AM

Michael - some percentage of pornography is the result of violence and coercion. Increasing distribution of certified "cruelty free" pornography and/or computer generated pornography might be something to attempt through copyright law, to create disincentives for the production and distribution of "bad porn," however that gets defines.

In addition, the consumption of certain porn may be socially harmful, and we may want to discourage it. That is a very contested point, but I think it's worth debating. I don't claim to have all the answers, but we'll never get close to any of them if all discussions about porn are shut down in flames, which happily does not seem to be happening here, for which I am grateful.

Posted by: Ann Bartow | Jul 1, 2007 7:43:23 AM

P.S. I am not a First Amendment scholar - I could be way off on the content discrimination issue.

Posted by: Michael Risch | Jul 1, 2007 7:26:12 AM

For Ann: "There are a lot of law review articles questioning the utility of copyright protection in music, movies, dance, computer software, architectural works, etc."

Yes, but the goal of those articles is to have MORE distribution of music, movies, dance, software, architecture, etc. That's my primary point that I didn't get an answer to - why would we want to change the rule to encourage MORE distribution?

For Frank: I think the different term issue is a good question. I suspect that different terms would be acceptable based on the content of speech only if very narrowly tailored, etc. (that is, strict scrutiny for content discrimination), and even then the decision to put material in different categories would have to be pretty clear cut.

I guess it depends on your policy goals - if you want pornographers to make less money, then you strip copyright. However, because of technical measures, non-economic goals, etc., pornographers will continue to produce pornography, even with less protection. Despite less production, you will have wider distribution of fewer products without protection.

If you want less distribution, you have to allow some protection.

Posted by: Michael Risch | Jul 1, 2007 7:15:28 AM

Sorry, I should have given a bit more context on the Post piece, or bracketed it. Anyway, its cite is 47 Stan. L. Rev. 1249

Criterion 1 of content neutrality is just that speech "be justified without reference to the content of the regulated speech".

Posted by: Frank | Jun 30, 2007 11:53:18 AM

For Michael: Would a decision to give a different term to pornography (or software) offend the constitution? How about just giving some kinds of expression different kinds of protection? It seems to me that after the Eldred decision, the Supreme Court is in the mood to give heaping helpings of deference to Congress on these matters. (See, e.g., Treanor's article in YLJ).

The big problem is the content neutrality issue. But as Robert Post has said, "Whatever the ultimate merits of a First Amendment focus on content neutrality, the Court's doctrinal elaboration of criterion [1] has been haphazard, internally incoherent, and for these reasons inconsistent with any possible principled concern for content neutrality."

However, there may be a way around content-neutrality. I believe that copyright as instantiated now can be modeled better as a subsidy to the creative industries, not as their divine right. (There's a Mark Lemley article on Free-Riding citing Tom Bell to this effect re the subsidy model.) In that case, demanding the government give the same rights to all works is like demanding that the NEH give the same size grants to all applicants. See, e.g., Finley, where "1998 the Supreme Court ruled 8 to 1 that [a decency test for grants] was constitutional, and that it violated no rights. Grant-seekers, the court noted, were required to submit their proposals to a panel representing diverse points of view; as such, the risk that an arbitrary ruling of indecency would be reached was minimal." (from http://law.jrank.org/pages/4459/Art-Law.html

So perhaps the complete counterexample would be: Congress sets the term of copyrights to one day for all works, then selectively grants long terms to everything but porn.

But for a warning about getting gov't too involved in such decisions, see:

Posted by: Frank | Jun 30, 2007 11:51:20 AM

Perhaps because I'm not viewed as much of an IP guy these days, the piece hasn't received too much attention, but my law review note in the Harvard Law Review was on this topic in 2000 (more specifically about porn deemed obscene or other culpable copyrighted material), which "Nimmer on Copyright" cites--but which not many others do. Here's the link to it: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=410933

The topic of the piece is more generally about how IP law can be used to regulate the incidence of criminal behavior, but the piece is motivated by the apparent abuse of Linda Lovelace in Deep Throat, and the proposition that producers of IP that break certain criminal laws during the production of their work for IP should be stripped of their gov't conferred monopoly. I address the con law issues too. If I recall, Tribe disagreed with me, but various other con law people at HLS and others didn't think it would be a problem. I'd be curious to hear what people think because my plan is to build the idea into a more general article about "firewalls" between branches of government: when to have them, when to get rid of them, what their structure should look like, etc. Of course, the more general question of copyright and porn (as opposed to obscene porn) remains a very knotty question; the piece I wrote suggests some of the reasons why.

Posted by: Dan Markel | Jun 30, 2007 10:55:30 AM

"We" already make decisions about what is copyrightable (and patentable, and protectable via trademark law) all the time. "We" make the same calls about pornography, child pornography, and obscenity as well. Registrants bear the cost of registration. The Copyright Office makes a call on copyrightability, which can be appealed. Nothing new there either.

There are a lot of law review articles questioning the utility of copyright protection in music, movies, dance, computer software, architectural works, etc. but not so with pornography. I think this is at least in part because law profs are afraid that if they are critical of any aspect of pornography, they will be accused of being prudes, censors, or "in bed with the religious right."

Posted by: Ann Bartow | Jun 30, 2007 10:48:08 AM

What a great question. This is exactly the kind of sexy (pun intended), quasi-constitutional, approachable but still legally-grounded issue that usually produces a disproportionate number of law review articles. I'm very surprised there is so little commentary.

Posted by: Andrew Siegel | Jun 30, 2007 9:13:26 AM

Here are some ideas (not necessarily my own):
1. Who are "we" to decide what is and is not copyrightable, or what is or is not pornographic for that reason. Do we really want to start down the slippery slope of content review to determine whether or not something is worthy of copyright protection? If you open that door, it becomes very difficult to shut, especially when it is difficult to tell what is obscene and what is not (and where that determination depends on community standards).

2. Even starting that inquiry can be very costly. Copyrights remain unexamined for registration. Do we really want to set up an examination corps to determine whether a work is pornographic? Sure, this might be simple for professed hardcore, but don't we need to have examination of books, magazines, and even NC-17 rated films in order to avoid due process/arbitrary and capricious claims?

3. Then, to what end for all this cost and disparate treatment? Pornography will still exist, and denying copyright would likely be counter productive. Given the amount of pornography that is now on the internet and the ease of making "homemade" film a la YouTube, the primary protection measure is technical - password protection, etc. The copyright is only a fallback for mass duplication of non-online works. Even then, an enforced (either through courts or voluntarily) copyright serves to increase the price of pornography, which in turn lowers distribution, which sounds like your goal. Without such protection won't pornography become more readily and widely distributed?

4. Empirical question: How many actions are there now to protect pornographic materials? Is copyright really a bestowment that has a noticeable effect today?

5. To summarize the above in a real story, I was involved in a case 15 years ago (my first as a legal assistant out of college) involving grey market importation of soft-core asian pornography, for which there were copyright registrations. These movies were otherwise legal in the U.S. and we were able to seize the grey market copies. Was the owner of these movies really to be denied relief for an otherwise legally protected activity? Is that what the free speech and equal protection are really about? Was it really so bad that there were fewer copies of these movies on the street after the seizure?

Just my .02.

Posted by: Michael Risch | Jun 30, 2007 7:43:09 AM

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