opinion

Challenging The Copyrightability Of Porn

Marc John Randaza

Adult entertainment companies have become increasingly aggressive about defending their intellectual property rights, with high-profile cases being filed against illegal tube sites, file lockers, and torrenters. With the advent of porn companies enforcing their rights, a chorus has risen against the industry — calling its efforts too “heavy handed,” or (laughably) “censorship.” The industry’s efforts are neither — and the voices against its efforts are largely a chorus of those who benefit the most from the theft industry (and rest assured, content theft is an “industry” in itself) and traditional anti-porn groups.

This article is not yet another belated lecture to the industry about content theft — anyone reading this article already feels the effects. This article instead will educate the reader on a theory being batted about — that copyright might not even be able to protect erotic films. This theory has been raised and refuted before, but the mere fact that it has raised its head again is troubling, and should not be taken lightly.

In its current efforts to stop theft of its content, the adult industry is once again confronted with a twin-engined erotophobic attack with new life being breathed into an old theory by feminists (both of the male and female variety). The idea that porn can not be copyrighted is not new.

Missing the Point: Turning an Academic Sidenote Into an Attack on Porn

This latest assault on the adult industry’s existence comes from a seemingly traditional ally, the academic left. However, there is a history of right wing antiporn zealots teaming up with feminist theorists to try and destroy the adult entertainment industry. In the 1980s, Indianapolis passed an antiporn civil rights ordinance, allowing women who felt offended by certain kinds of pornography to sue the producers of that content for damages. Fortunately, the Seventh Circuit struck down the ordinance, holding “the First Amendment means that government has no power to restrict expression because of its message [or] its ideas.”

In its current efforts to stop theft of its content, the adult industry is once again confronted with a twin-engined erotophobic attack with new life being breathed into an old theory by feminists (both of the male and female variety). The idea that porn can not be copyrighted is not new. Every few years someone reheats the idea in order to get a publication credit or to curry favor with the power that control the keys to tenure. In 2010, law professor Ann Bartow wrote “Copyright Law and the Commoditization of Sex,” a rambling and largely incoherent mishmash of bitterness toward pornography in which, with scant support, she puts forth a call for the Copyright Act to be amended to exclude “non-progressive” pornography.

On Halloween 2011, the federal district of Massachusetts issued an order in Liberty Media Holdings LLC vs. Swarm Sharing Hash File, which included a footnote, mentioning the Bartow article, discussing whether pornography is copyrightable. The footnote briefly analyzed the law’s evolution toward recognizing copyright protection for pornography, including even obscene materials. Correctly, the Massachusetts court observed that this exact question had not been answered by the Court of Appeals for the First Circuit, and in other Circuits.

This footnote was incidental to the Court’s order, and inserted for context and flavor. However, two San Francisco attorneys — Aaron McClellan and Steven Yuen — and their client Liuxia Wong, took it as an invitation to reopen the question in the U.S. District Court for the Northern District of California. Wong was identified as the owner of the IP address used to torrent one of Hard Drive’s movies in an earlier lawsuit; she received a demand letter on that basis. Wong then filed a lawsuit, asking the Court, in part, to declare that she cannot be liable for copyright infringement because, as pornography, it cannot be copyrighted. Her argument comes down to this:

  • “Hard Drive’s work does not promote the progress of science.”
  • “Hard Drive’s work does not promote the useful arts.”
  • “Hard Drive’s work depicts obscene material.”
  • “Hard Drive’s work depicts criminal acts and/or conduct.”
  • “Hard Drive’s work is not copyrightable.”

Wong’s attorneys’ argument that pornography cannot be copyrighted rests on two flawed premises. The first, that pornography is not copyrightable because it depicts unlawful conduct, has been eliminated since the California Supreme Court held in People vs. Freeman that pornography was not prostitution and not a crime. The second, that pornography is not a “useful art” as contemplated by the Constitution, would impose an illegal, content-based restriction on copyright protection — one that has been consistently rejected. These contentions do not reflect the law or any sane legal theory, but only the opportunistic morality of Ms. Wong and her attorneys. If successful, it would deprive the adult industry and many others of their ability to protect their original works. What is worse is that it would usher in a new era of the government acting as a censor, by using its power to deprive disfavored content of its constitutionally mandated incentives.

What Is Copyright?

To put it simply, copyright is a limited right of an author to financially benefit from his or her original works. Prior to the advent of copyright law, artists and authors needed a “patron” in order to be able to practice their craft and make a living. Therefore, a few lucky painters would find themselves groveling at the feet of the nobility, creating works of art for as long as they were in favor with the rich and the powerful. However, as the Enlightenment grew in force, copyright began to be seen as a better way to ensure the creation of a diversity of works. The theory was that if authors had an economic incentive to create works, the marketplace of ideas would decide which works had value. Rather than a small group of oligarchs deciding what we would read, the marketplace of ideas would be joined with the democratized commercial marketplace. The common man, acting collectively, would determine which works flourished and which perished.

Of course, for as long as there have been books, movies, and works of art, brought to life by creative minds, there have been parasites who would prefer to live by the sweat of someone else’s artistic brow. The founders of the U.S. were no strangers to this concept, and despite their commitment to free expression, they also saw fit to enshrine copyright protection in the Constitution.

Those who steal creative works are fond of calling copyright enforcement “censorship,” but this is truly an uneducated and self-serving view of the concept. On the surface, copyright is in tension with unfettered free speech. An uneducated view of it is this — “I should be able to publish anything I want to, and if I publish your movie, then it is censorship of my free speech rights to stop me from doing so.” This is sort of like saying it is an infringement upon my right to travel if I can’t just hop in your car and hitch a ride without permission. Contrary to the lies told by those who disagree with copyright protection for creative works, copyright protection serves free speech principles. Copyright encourages the growth of the marketplace of ideas to its broadest extent — creating incentives for authors to create new works while protecting their moral right to profit from the sweat of their brow. As the Supreme Court stated, “Indeed copyright’s purpose is to promote the creation and publication of free expression.”

What Is Required for Copyright Protection?

The Supreme Court articulated the modern test for whether a work is entitled to copyright protection in Bleistein vs. Donaldson. In this decision, the defendant claimed that a mere circus poster was not entitled to copyright protection. The Supreme Court rejected the argument that the poster was not sufficiently creative — establishing the rule that if the work has an original element to it, then it is entitled to copyright protection.

Judge Holmes, writing for the majority, foresaw the problems of allowing lawyers and judges to determine what was (or was not) entitled to copyright protection, stating, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of [creative works].” In addition to recognizing the constitutional prohibition on government restrictions based on content, this statement reflected the reality that taste and aesthetics do not factor into whether copyright protections attach to a work. If that were the case, America’s creative markets would be hurled back into the Renaissance era, where the only works created were those commissioned by wealthy patrons, and made to satisfy their tastes.

Indeed, if a work’s protections were based on a court letting it pass a taste test, then entire innovative genres of work would be excluded from the incentivizing effects of copyright protection. “At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” For example, at one time, even James Joyce’s Ulysses was considered to be too risqué for the American market. Unfortunately, this is the position favored by those who are against copyright protection based on content.

The Hazards of Not Applying the Bleistein Originality Test

Prior to Bleistein, some courts entertained the notion that erotic works would not receive copyright protection. In 1867, the then-existing Circuit Court of California held that the defendant’s parody play, “The Dark Crook,” was not entitled to copyright protection because of profanity in its contents. Martinetti vs. Maguire, 16 F. Cas. 920 (C.C. Cal. 1867). The Court found that “it is the duty of all courts to uphold public virtue, and discourage and repel whatever tends to impair it.” Because the Court looked beyond the bare requirement of originality in assessing the play’s copyrightability, it denuded the defendant of all protection for a work that today would be described as a dark comedy.

The Northern District of California reached a similar conclusion about a musical composition in Broder vs. Zeno Mauvais Music Co. In that case, the Court objected to the use of the word “hottest” in the song “Dora Dean,” and found that the song could not be copyrighted for as long as the word “hottest” remained within its composition. In a decision that would be mind-bogging today, the San Francisco-based court wrote that “the word ‘hottest,’ as used in the chorus of song ‘Dora Dean,’ has an indelicate and vulgar meaning, and that for that reason the song cannot be protected by copyright.” It is this Victorian attitude, merged with extreme legal theory, that drives today’s “porn can not be copyrighted” position.

Lest the reader be misled that no court has supported this position since the 1800s, there is one modern decision that lends a shred of support to the idea. In 1998, the Southern District of New York refused to issue an injunction in favor of Devils Films in an infringement case because the Court believed the films’ content to be obscene, and that the enforcement of an injunction would use the U.S. Marshals to sanction the production and distribution of unlawful content. However, it is important to note that even if the court’s reasoning were sound (which it is not) this was not a decision that the content was not entitled to copyright protection — but merely that the plaintiff was not entitled to an injunction. The two are not the same.

When this issue was finally confronted by a modern appellate court, the theory was roundly rejected. In Mitchell Brothers Film Group vs. Cinema Adult Theater, the Fifth Circuit reversed the outcome of a trial where a Texas court allowed the defendant movie theater to claim the plaintiff’s movies were obscene and, thus, not copyrightable. The court wrote, “it is immediately apparent that limiting copyright protection on a broad public injury rationale would lead to absurd and unacceptable results.”

The Ninth Circuit reached a conclusion comparable to the Fifth’s in Jartech Inc. vs. Clancy. In Jartech, the appeals Court invalidated any notion of an obscenity defense to copyright infringement, noting that due to the community standards element of any obscenity analysis, “acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.”

With these two appellate courts weighing in identically, we would think the matter was settled. However, would-be morality police have, if nothing else, shown a reluctance to ever accept liberty as an immoveable object.

The Theory Advanced by Wong and Others Is Incorrect

Liuxia Wong and others advance a legal position that would have dire consequences for the adult industry, among others. Thankfully, it is erroneous for numerous reasons. In addition to the Mitchell Brothers and Jarman decisions establishing that even obscene materials can be copyrighted, Section 102 of the Copyright Act supports the proposition set forth in Bleistein— that only originality, not taste or refinement, is required for a work to be copyrightable.

Wong’s Theory Calls for an Unconstitutional Content-based Restriction

While the U.S. Constitution recognizes intellectual property rights to further science and the “useful arts,” it does not define just what “useful” is. The Bleistein Court, which established the originality standard by which copyrightability is evaluated today, recognized the broad sweep of what could constitute “useful arts”: “The Constitution does not limit the useful to that which satisfies immediate bodily needs.”

Under Bleistein’s logic, something need only be sufficiently original to be copyrightable and therefore useful under the Constitution.

This form of market censorship has been tried before. In the 1980s, due to public outcry over criminals profiting by selling their stories, New York passed its “Son of Sam Law,” which prohibited criminals from profiting from books about their crimes. The Supreme Court struck the law down, holding that “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”

In that case, authors were still free to write, but were merely denied some financial benefits of their labors because the vast majority of the population felt that profiting from this form of expression was wrong. Nevertheless, the Supreme Court found this to be an unconstitutional restriction on expression. It is well settled that the government cannot look to the content of an author’s creative work to determine whether it receives protection. Even legally obscene works, illegal to distribute in the first place, are protected by copyright. The law does not call for a new test, and the one posited by Ms. Wong is impermissible under the First Amendment.

It Is Negative Use of Copyright in Order to Use the Government to Suppress Certain Speech by Rendering It Unprofitable.

Copyright sweeps broadly to incentivize the broadest marketplace of ideas. The purpose of the Copyright Clause and Copyright Act was to provide incentives for creation, not to provide incentives for creation of governmentallyapproved content. Wong’s case essentially seeks to end any notion that the government should have no hand in controlling the marketplace of ideas. A categorical rejection of copyright protection for pornography would serve no purpose but to cast a chill over free expression. The restrictions Wong and others seek plunges protection for free speech back into an era best described by Justice Stewart: “I know it when I see it.”

The effects of this regime will not be limited to pornography. Other forms of content — mainstream films depicting sex, music from rock to hip-hop that describes sexual conquests, and even literotica — will have targets emblazoned on their backs, inviting feminist and religious censors and other easily offended groups to target their free speech rights. If the government can say that pornography is of low enough value that it should not be protected by copyright, thus disincentivizing its creation, where is the backstop? The natural and immediate consequence of such a rule will be less participation in a marketplace that would quickly erode into artwork created for individual consumption via commissioning, depicting only the desire of the patron — not the artist or the market. The message sent by requiring a subjective analysis of utility as a prerequisite to copyright registration is clear: If a powerful group feels strongly enough about what you make, you may be deprived of your ability to protect it.

Why We Should Be Concerned

While any content-based restriction on legal protections for the adult entertainment industry is unconstitutional, it is not unprecedented for unconstitutional laws to be exercised to the industry’s detriment. Federally, Section 2(a) of the trademark act essentially has been used to deny trademark registrations to adult companies based on a low-level trademark office employee’s subjective impression about whether a brand name is scandalous, immoral or disparaging. Within California, the actions of Cal/OSHA and Los Angeles County, are beyond the bounds of constitutionality. Yet, because of the time required for effective litigation, courts do not recognize the unconstitutionality of these actions while they are enforced, to the adult industry’s detriment.

Any credence that the “porn is not copyrightable” position receives will embolden other opponents to join arms against free speech. Censors aligning with antisex, anti-porn advocates will press this issue and agree that adult content is not entitled to protections under copyright law or any other law.

Once again, the adult industry is called to fight for the free speech that is guaranteed in our Bill of Rights. Those who would seek to impinge on the industry’s free speech do so to terminate any legal protections for the main item produced by the adult entertainment industry: its content. If the porn industry is excluded, what will be next? The demonization and attack upon mainstream businesses with even a toehold in risqué content would come next, widening the sphere of what is not “useful,” and thus not copyrightable, until entire genres of speech are consumed within its reach.

If the adult industry fails to defend its turf, mainstream companies will shall fall victim. But, if the porn industry collapses due to piracy, what will it mean for the marketplace of ideas? Given the adult industry’s contributions to the shaping of the internet and e-commerce generally, online innovation will slow with the demise of pornography. While the MPAA has been superior to the RIAA in adapting to new technologies and evolving markets, both have trailed — and even copied from — the online adult business community. Without a robust adult industry, online innovation from web design to SEO will stagnate.

Piracy, however, will continue unabated — at least until fought by industries with cohesive, infinitely wellfunded trade cartels. To do so, these groups will need to enforce the copyright rights that infringement defendants seek to strip from the adult industry and, if successful, will target in other industries as well. While the challenge to the copyrightability of pornography presently is unique to the adult sector, it is a battle with far-reaching consequences, possibly portending great harm for adult entertainment, and other industries as well if the Wong challenge to copyrightability is successful.

Truly, the gauntlet has been thrown down before this industry. It has been thrown down by thieves and those that assist them, so that they may castrate studios of their ability to prosecute infringers for their piracy in the future. If successful, this challenge — however legally unsupportable it is — will plunge the adult community into an age of darkness where its rights are unenforceable and the very market place of ideas will follow. This darkness will spread across industries and media until anything conceivably controversial is deprived of its entitlement to intellectual property protections. While everyone hopes the general public appreciates and benefits from their work, adult entertainment is not a public art project where everyone can freely share the creators’ fruits. And if Luxia Wong and her attorneys wish to push an anti-copyright agenda, they must realize the ethical failure and constitutional intolerability of such a position.

Marc J. Randazza is a First Amendment and Intellectual Property Attorney based in Las Vegas. Randazza is a member of the First Amendment Lawyers’ Association and is licensed to practice law in California, Florida, Arizona, Massachusetts, and Nevada. Randazza would like to thank J. Malcolm DeVoy for his assistance in the research and writing of this article.

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