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.