The Copyrightability of Porn

Back in April, I wrote an article “Challenging The Copyrightability Of Porn” (html versiondigital mag version)

This was to confront a growing chorus of voices questioning whether porn can be copyrighted. You likely don’t need to read my article to know where I come down on it.

Over the past week, The First Amendment Lawyers’ Association has honored me by permitting me to file amicus briefs on its behalf in Colorado and Massachusetts, confronting this issue in the courts. (The MA one is a little better refined)

26 Responses to The Copyrightability of Porn

  1. Read your MA brief… after reading Popehat for too long, it was interesting seeing the word “censorious” and having it not be followed by “asshat.”

    Question for you: I’m not sure I fully understand the position that *obscenity* can be copyrighted. My understanding that obscenity is contraband, so how can one enforce property rights on something that they can’t lawfully produce or own? It seems akin to a civil action complaining that your drug dealer fraudulently misrepresented the potency of your drugs.

    –Jon

  2. CPlatt says:

    Marc I read your article mainly because I couldn’t imagine the argument to which you were replying. And assuming you have summarized it fairly, it isn’t an argument at all. You describe “two flawed premises. The first, that pornography is not copyrightable because it depicts unlawful conduct…” In that case, at least half of the motion pictures ever made would be un-copyrightable! The second, that “pornography is not a ‘useful art’ as contemplated by the Constitution” … well au contraire! It is indeed far more useful than most arts, since it can provide physical excitement, leading (one hopes) to orgasm, and the beneficial physiological effects that follow. Name any other art that has such easily an measurable positive consequence. The science-fiction novels that I wrote were clearly not as useful as the pornography that I wrote.

    The possibility that anyone with a legal education could seriously suggest that copyright should be contingent on content had never occurred to me. I guess people will do just about anything to get rid of something that they think is “bad.”

    • In modern times, it’s not used to get rid of porn on moral grounds, but rather to get away with copyright infringement.

      • CPlatt says:

        Ah. Money trumps morality. Interesting.

        All I know is that a porno novel of mine that Olympia Press published in 1971 was pirated in Japan (translated, of course) and became a highly successful book. I didn’t find out about this until a Japanese editor told me about it 20 years later. Evidently the lack of respect for copyright of porn seems to have a long pedigree.

  3. Raul says:

    Like I said before, obscenity can be copyrighted but the infringement of obscene materials cannot be enforced. Quite simply anyone who argues otherwise is engaging in semantics to dodge around the harm trolls pose to the First Amendment in pursuit of the easy money. Fucking horrifying IMHO, now sue me, hypocrites.

    • “the harm trolls pose to the First Amendment” — a frequent mantra that has never been explained.

      • Raul says:

        I thought my humble little post explained it clearly http://fightcopyrighttrolls.com/2012/08/13/judge-marrero-pornography-may-not-be-entitled-to-copyright-protection/

        To summarize, with Predna and CEG clogging up federal court dockets with their blizzard of copyright troll lawsuits some of which are outright frivolous (see, CEG’s Stagliano Lanham Act complaints), judges are casting around for reasons to kill them by severance. It is my opinion that this recent invocation that obscenity does not equate with copyright protection is a warning shot across the bow for these lawyers to cool it with the extortion scam. Nonetheless it, regrettably, could become yet another reason to sua sponte grant severance because copyright trolls are pushing the issue with their ceaseless filings.

        BTW-read the MA proposed Amicus Curiae Brief and another great job. Just one quibble, no one in my camp is “pro-copyright theft”, rather we are against what CACD Judged Wright has pegged as “essentially an extortion scam”.

      • I have not examined most of Prenda or CEG’s claims — only one of them with any detail. I didn’t find that one to be “frivolous” by any stretch.

        Calling it an “extortion scam” doesn’t really carry much weight with me. In these cases, it is undeniable that someone committed infringement. The copyright owner has a right to redress for that. If the clerks or judges have some prejudice against the plaintiffs, then that is for them to work out.

        I do not think that the judges are “warning” anyone with this issue. Judge young seemed to raise it in Massachusetts as a bit of academic rumination. After that, I don’t know of it coming up again until Luxia Wong raised it. Her attorneys were ready to get slapped for it, since the 9th Circuit has binding precedent on that issue. Since then, we’ve had one litigant in Colorado raise it, and two judges (NY and MA) raise it.

        Their rationale is likely rooted in either a) a bit of ignorance of the state of the law (I’m hoping to cure it) or b) some theory that one of their clerks wants to push.

        Do you really think that federal judges are prepared to make sweeping changes to copyright law just to keep porn companies from petitioning the courts for redress of their legitimate grievances? I find that hard to imagine.

  4. I don’t think anyone is going to be fooled into believing that the stories in these things are going to win Pulitzers any time soon, or that there is a lot of unique plot-lines out there, but I think it’s a dumb argument to have. Of course it’s copyrightable. Anything in a fixed medium created by an individual with the intent to create something of lasting value should have the protection of copyright if it doesn’t infringe another’s rights.

    The larger, and more pressing, and more vexing question is Twilight fanfic copyrightable.

  5. G Thompson says:

    Well written brief and with no snark to be found – who are you and what have you done with the real Mr Randazza o¿0

    A question from a fascinated foreigner though – If in a hypothetical situation legal “Adult Films” are struck down as not being copyrighted either by this court and then after appeal by SCOTUS, wouldn’t they still be unaffected by 1st Amendment principles and therefore still able to be shown, produced, and viewed by Adults? Or am I not seeing a correlation between Copyright and Speech (which I always thought were two separate concepts under the US Constitution).

    I can understand the major knock on affects a denial of Copyright would have but cannot see a removal of First Amendment protections occurring due to any such removal of copyright

  6. When you condition government protection of materials on a content-based test, that violates the First Amendment.

  7. Allison says:

    Hi Marc,

    Wouldn’t exercising most of exclusive rights granted to Copyright owners be a direct criminal violation of 18 U.S.C. 71 if the work was found to be obscene? I’m not an attorney(hope to be one in a few years), but I don’t see how you could be granted rights that are illegal under federal law. Also, based on your argument you are more or less saying that child pornographers could copyright their videos of horrific abuse by simply adding some creative element to the videos? Or would that be an exception because it is considered much worst than obscenity(which it absolutely is)?

    I think you make a great argument but feel that it is a bit over broad to say that it is completely content neutral. Copyright owners are granted the exclusive right to reproduce, distribute, publicly perform, etc. and those same “rights” will also land you in jail for decades depending on the content of the work. Do I think child pornographers are stupid enough to copyright their videos of torture? I would think not, but then again they clearly aren’t right in the head and I guess anything is possible when you’re that deranged…

    • I am saying that under the law, yes, even child porn would be copyrighted. The briefs discuss this — that even when content is of clearly illegal conduct, copyright doesn’t care.

      And… I am not certain that is a bad thing, even as applied to child pornography. If the author had a copyright in the video, it could be forfeit to the victims — who would then have another tool with which to get the works taken down, and to financially punish those who redistribute them.

  8. James says:

    There are at least 2 scenarios where even legally obscene material must receive copyright protection.

    1. Under Stanley v. Georgia it is completely legal to produce, possess and distribute (non commercial) obscene material in one’s home.
    2. In a state like Oregon (and possibly others like Montana and Hawaii) which does not have state obscenity statutes, there are no legal barriers to manufacture, distribute and possess obscene material within the state. Of course if obscene material travels in interstate commerce then federal obscenity statutes would apply. Therefore *any* sexually explicit material not involving children is fully protected within Oregon – even if it were possibly obscene in other jurisdictions.

    Under both of these scenarios the creator of otherwise obscene material has complete First Amendment protection to produce and distribute obscene material. Denying copyright protection for entirely legal material would be impermissible. .

    • Charles Platt says:

      This is very interesting. However I recall that one state–I think it was New Mexico–tested federal laws on firearms (the federal law requiring a background check, I think) by manufacturing a gun and ammunition entirely in-state. As I recall, their ploy failed. So I have to wonder if obscene materials in Oregon would be exempt from federal control. Certainly if they were printed on paper, the paper, or some ingredient in it, or the power to make it, would have crossed a state line.

  9. peth says:

    I guess I’m an idiot because I can’t understand how sex can be copywritten…….

    • I guess you are an idiot then. How is sex different than music or a lecture? All three are performances.

      It’s not the sex that holds the copyright, you are welcome to go record your own performance, and publish that how you like. You can even release it into the public domain.

      Using someone else’s work is unethical and a violation of copyright. Why is this hard for you?

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