Wednesday, August 31, 2005

Should Obscene Works Be Protected?

Whether works deemed obscene should receive copyright protection periodically receives attention. 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). More recently, Judge Baer of the same court took a different view in Nova Products, Inc. v. Kisma Video, Inc., 2004 U.S. Dist. LEXIS 2471 (S.D.N.Y. Dec. 1, 2004), noting that in Manhattan at least hard-core pornography is not patently offensive under "contemporary community standards."

Given the community standards approach to obscenity, an obscenity defense to infringement (the issue in Nova) or as a bar to equitable relief (the issue in Devils Films) is problematic as a practical matter. But what about as a legal matter? When Judge Martin said the matter was "self-evident," that was a good tip off it was anything but that. All copyright mavens know the Supreme Court's Bleistein opinion, but may not know that the lower courts had barred protection on grounds of immorality, the posters depicting women in tights with bare arms, designed to lure men to the circus. Other courts denied protection to song lyrics. Dramatic compositions, especially those including dance, were a favorite target of disapproval; as late as a 1963 New York state court decision denied common law protection to choreography that had too suggestive moves.

The Copyright Office has had a varied history in the matter, rejecting some claims in the 1930s. In 1941 Register Bouve stated this policy explicitly in his 1941 Annual Report. This may have been in reaction to a registration made in 1940 by Assistant Register Howell who noted that "to the pure of heart all things are pure." Beginning in 1954 (Ruling No. 32), the Office stated that while the Office does not ordinarily examine for content, if a work was deemed obscene the matter would be referred to the Justice Department for possible prosecution with the registration placed on hold. Register Kaminstein was, however, particularly concerned about avoiding the Office in such matters and despite pressure from the Attorney General and the Post Office (you had to mail in deposits, after all), and perhaps bolstered by the Supreme Court's 1957 opinion in Roth v. United States, 354 U.S. 476, he registered Lady Chatterly's Lover in 1959. An Attorney General opinion in 1959 noted the "substantial problems" the Office would face in making ad hoc decisions. In 1967, a Supplementary Practice was inserted into Compendium I along the lines of the 1954 ruling. Compendium II (Sec. 108.09), states that
the Office doesn't examine for content, but doesn't contain any provision for referral to the Justice Department.

There is one exception, apparently. While I was a Policy Planning Advisor the issue of registration of child pornography came up. Under pressure form then Senator Dan Qualye (I recall), the Register announced he had a policy (that people could view in the Public Office I never managed to be able to get a copy of the policy) and the policy was apparently the same as the 1954 ruling, referral for possible prosecution. But legality aside, does pornography promote the progress of science? Do we make such determinations on an individual basis, a class basis, or a systemic basis (the Copyright Act as a whole). The last possibility has been the more recent approach, but child pornography perhaps pushes the question in other directions.

13 comments:

Anonymous said...

Nice discussion and historical account. Shouldn't the bottom line answer be: all pornography is copyrightable, unless it rises to the level of obscenity. If it's obscene, then First Am. says you can proscribe and Copyright Clause should have no problem with that. Going back to Bleistein and Holmes, we by and large want to keep judges out of the business of screening out works for moral or artistic content.

William Patry said...

That's a possibility, and I suspect how people come out on it will depend on whether they believe there should be a bar to obsecity under the First Amendment. See, for the example, the Fifth Circuit's opinion in Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979).

Anonymous said...

Good point, which reminds of the need to qualify my earlier suggested rule:

all pornography is copyrightable, except (1) if child pornography or (2) if pornography rising to obscenity, in which case not copyrightable.

If people question obscenity law as you suggest, we'd still agree on child pornography as being not copyrightable.

Tom said...

I've been reading The Brethren and just finished the obscenity cases, so it's interesting your bring this up.

I don't think the First Amendment has anything to do with Copyright here. The First Amendment does not protect obscenity because it's not speech. But, it does not follow that if something is not speech, it's not protectible under the Copyright Act. That leads me to ask, must a work be “legal” in order to be protectible by Copyright?

I had this thought the other day. What would the result be if a work were created illegally? For example, a paparazzo breaks into an actress's house and photographs her in the shower. There's a pretty clear public policy against enforcement here, but I don't know of anything that expressly says an author must not be doing something illegal to have his work be protectible.

Probably a better example is a photographer wandering accidentally onto private land, and takes a photograph. The photographer has committed a trespass, but does he still own the photos he takes? I am assuming here the photograph does not involve people, but nature.

C.E. Petit said...

I come down on this slightly differently, as I think the "community standards" theory of obscenity and indecency has more than demonstrated its intellectual--and, indeed, moral--bankruptcy. This is far from a new situation; compare the lower-court opinions in the 2Live Crew case (Campbell aka Skyywalker v Acuff-Rose Music, Inc., 510 U.S. 569 (1994)) with Justice Souter's, umm, interesting analysis and choice of material for the appendix. Although the parody in question would not strike most of us as "obscene," it's awfully close to what might have been "obscene" in 1991 Memphis... which is also part of the Sixth Circuit, the home of the Campbell litigation (not to mention Acuff-Rose Music).

I see copyright as being so distinct from the First Amendment that the question of whether speech is "protected" under the First Amendment should be treated as irrelevant to copyrightability. After all, remember that the Comstock Acts--the genesis of which forms part of the social background of Blaustein--were motivated by what we would now characterize as political perceptions at least as much as by concerns for morality. Given the ever-increasing life of copyright, I can't see using today's standards for "indecent," "obscene," "pornographic," or whatever in some community as justification for declaring that a work will never merit copyright protection,

William Patry said...

I fall on the side that Tom and the Fifth Circuit do, namely that there should be no link between copyright and obscenity. Conversely, the fact that one may get copyright protection for the hardest case, child pornography, doesn't mean you shouldn't bevigorously and criminally prosecuted; the death penalty is fine with me. (But see Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) on what consitutes child pornography). And I am fine with the Copyright Office referring child pornography to the Justice Department because it is illegal. Adult pornography though should be registered since the Office cannot make a community standard evaluation.

David Carson said...

Funny you should bring up this topic at this time. At the Copyright Office, in the last few weeks we've started taking another look at the policy you describe in the last paragraph of your discussion. While that review is still under way, we have -- at least for the moment and I suspect for the long run -- rejected any notion that we would refuse registration simply because we believe that the work submitted for registration may be obscene.

Two cases that you haven't cited but which support that conclusion are Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980), and Jartech v. Clancy, 666 F.2d 403 (9th Cir. 1982), both of which rejected the idea that obsscenity is a bar to copyright protection. As the Fifth Circuit said in Mitchell Bros., "[t]here is not even a hint in the language [of the Copyright Act] that the obscene nature of a work renders it any less a copyrightable ‘writing’. There is no other statutory language from which it can be inferred that Congress intended that obscene materials could not be copyrighted. . . . The history of content-based restrictions on copyrights, trademarks, and patents suggests that the absence of such limitations in the Copyright Act . . . is the result of an intentional policy choice and not simply an omission."

William Patry said...

The cases David Carson cited are, of course, quite important. I have a quite detailed look at the issue, including lots of history of the Office's position and case law for anyone who is interested. Please email me.

josh wattles said...

Isn't there is a real difference between the investitive analysis to the copyright in obscene content and the analysis of the useful application of 106 rights when the subject matter is criminally obscene? As I recall, mere possession of child pornography is a crime. Any person seeking to enforce a claim under copyright with respect to such content would have to claim to be its owner and then, in order to bring an action, register the work with deposits. That would be a stupid, boneheaded thing to do and I cannot imagine that any lawyer would advise it. On the other hand, it seems clear from the statute that copyright attaches to any photograph of just about anything as it is taken. As a policy matter, perhaps child pornography should not obtain copyright protection as a way to break every possible link to its possible distribution. If Congress decided to do this, it seems to me no adverse precedent would be set. After all, whole classes of works have in the past been denied protection, others are still denied protection and, on pure authorship grounds all works of the United States government are excluded from copyright. Of course, a rabid Congress (that can threaten to shut down whole museums and the entire National Endowment over some homoerotic and unequivocally highly expressive photographs by an internationally recognized artist - - Google using “Mappelthorpe” as a key word) might go too far with content based exclusions to copyrightability. Then there might be a fact situation in which, like Zapruder, accommodations are forced between the copyright clause and the 1st Amendment.

William Patry said...

During the passage of the VARA in 1990, the Mapplethorpe issue was quite prominent. Another area where the issue plays out is in fair use where courts have been quite reluctant to accord fair use to works perceived as obscene.

Anonymous said...

The Big point that is being missed: once you say the obscene work or child pornography is copyrighted (and allow its registration), you give the copyrightholder a very credible Takings claim if the gov't attempts to proscribe it. That's an absurd result that would best be handled by adopting a rule saying none of these unlawful works are copyrightable.

Anonymous said...

Patry: "doesn't mean you shouldn't bevigorously and criminally prosecuted; the death penalty is fine with me."

Death penalty upon possession of c.p.? Now that's hysterical. Certainly, that's a worse crime than shop-lifting, but killing a person upon possession of something - anything - isn't justified. Then again, the death-penalty never is.

William Patry said...

Anonymous, you must not have small children