A wide variety of erotic creations can be copyrighted and registered with the U.S. Patent and Trademark Office, including adult films, erotic fiction, nude photography, fetish/BDSM art, hentai (erotic Japanese animation) and erotic paintings.
The growth of intellectual property concerns in the adult entertainment industry in recent decades is a reflection of the industry's considerable expansion; the adult industry has evolved into, according to various estimates, an enormously lucrative worldwide business, which means that adult-oriented entrepreneurs are bound to be more aggressive about protecting their intellectual property. Many adult film companies, for example, have been putting much time and effort into battling DVD piracy and pursuing those who illegally duplicate and sell copyrighted adult films that most definitely are not in the public domain.
These days, any adult entrepreneur who is serious about making money will get his/her material copyrighted, but for many years, most providers of sexually explicit material did not think along entrepreneurial lines — and any discussion of the public domain as it affects adult entertainment should include some understanding of erotica's history and evolution.
Although erotic entertainment has been around for centuries or even millennia, the modern adult industry is a relatively young phenomenon — certainly compared to the mainstream entertainment industry. Adult entertainment existed long before the rise of Hugh Hefner's Playboy magazine in the 1950s, the birth of Penthouse Magazine in 1965 and the adult film explosion of the 1970s; there was adult entertainment long before there was truly an adult entertainment industry, but it was marginal and very, very underground — and many of the sexually explicit short films, photographs and illustrations that existed before Hefner's ascension were never copyrighted and are now considered to be in America's public domain.
A good example of an erotic novel that has entered the public domain is Leopold von Sacher-Masoch's 1869 classic "Venus in Furs," a BDSM manifesto describing a man's desire to be controlled and enslaved by a dominatrix. And the 19th century was important to the evolution of adult entertainment not only because of erotic literature, but also because that century saw the advent of the camera and the motion picture. A great deal of nude photography (now in the public domain) came out of the 19th century, and it is quite possible that some ultra-obscure adult films were made in the 1890s but did not survive. Film historian Patrick Robertson (not to be confused with evangelist Pat Robertson) has cited 1908's "Al'Ecu d'or oula Bonne Auberge" and 1910's "Am Abend" (which, according to Robertson, showed vaginal sex, masturbation, fellatio and anal penetration) as early examples of short, silent European adult films.
Sexually explicit films continued to be made in the 1920s, 1930s and 1940s, but as adult industry veteran/historian Bill Margold points out, the people who made them were very discreet, and those directors were way too obscure and underground, he said, to think of their work as intellectual property.
"The older black-and-white films that were made in the 1920s, 1930s and 1940s — the blue movies, the smokers, the nude films shown in garages and in the backs of bars —were never designed for public consumption," explained Margold, who was a major adult film star in the 1970s and now heads Protecting Adult Welfare. "The people who made that stuff were experimental filmmakers, and their films were sold under the counter — way under the counter — or shown at very private screenings. A lot of it was done anonymously, and I don't think the people who made those films gave a rat's ass about public domain or intellectual property or any of that stuff; all they cared about was the fun of doing it — the pleasure of doing it."
Adult cinema, Margold said, took a giant leap forward in the early 1970s with the release of "Deep Throat" and "Behind the Green Door." It was during that decade that adult filmmaking became a booming, highly profitable industry (as opposed to merely a hobby). "In the spectrum of history," Margold added, "I don't think you can name more than one or two or three adult films before the 1970s that really had any kind of major, widespread sociological impact. The early 1970s was when triple- X started playing for real."
Some of the erotic films, photographs, books and illustrations that were made in the 1970s were copyrighted, while others were not, and there has been much discussion about what adult films from that era are and are not in the public domain in the 2000s.
Two adult video heavyweights who have very strong views on the subject are David Sutton, president of VCX, and Steven Morowitz, co-owner of Video-X-Pix. Both specialize in adult films of the 1970s and 1980s, and both of them assert that video pirates have been getting away with stealing adult classics that they falsely claim are in the public domain but are really someone's intellectual property.
"For pirates, public domain is just another way of saying, 'I think I can get away with stealing this guy's stuff,'" Sutton said. "And it has to stop. Companies like VCX, Arrow, Standard Digital and Video-XPix are spending a lot of money to get the porn classics transferred and restored only to be ripped off by some pirate who is claiming that the films they're stealing are in the public domain."
Sutton added that even if an adult film has technically entered the public domain, a derivative work based on that film is intellectual property. In other words, if VCX (whose catalog includes favorites like "The Devil in Miss Jones" and "Debbie Does Dallas") puts out a digitally re-mastered DVD version of a 1970s title, that new version — the derivative work — is VCX's intellectual property.
"Let's say I have a title that wasn't protected and somehow, by some stretch of the imagination, is legally in the public domain now," Sutton said. "I have a master that I own — a master that I was given a right to — and from that master, I make a transfer to digital and do a DVD of that movie. I put on that DVD, 'Copyright 2006 VCX, Ltd., all rights reserved.' I sell that movie to the general public through my distributors. One of these pirates takes that DVD, rips a scene or two from it and says: 'It's in the public domain. I can put this on a compilation.' No, that's not true; you can't take a derivative work that has been copyrighted and say that because the work is in the public domain, the derivative work is also in the public domain. A derivative work is copyrightable."
Morowitz emphasized that if a video company is interested in reissuing a 1970s or 1980s adult classic on DVD, it needs to research the title's history thoroughly; what one assumes is in the public domain might still enjoy copyright protection.
"There are a lot of people making money off of registered material that they don't have a right to be using," Morowitz said. "Some people think that adult classics from the 1970s and 1980s are automatically exempt from copyright law, which is wrong."
According to Sutton, one reason why some adult entertainment providers of the 1970s, unlike mainstream entertainment providers, didn't necessarily register their material with the USPTO was a fear of possible obscenity prosecutions; they feared that the copyright might be used as evidence if obscenity charges ever came about.
"If you put your name on a copyright and registered it back then," Sutton recalled, "the authorities didn't even have to do any investigation. Your name was on the copyright; so they arrested you, and you spent $600,000 trying to stay out of jail."
Although Morowitz specializes in adult video, his comments on the public domain are applicable to other types of sexually explicit material — be it photography, literary fiction, BDSM art or Japanese hentai.
"When it comes to classic adult material," Morowitz said, "people need to do their research. It's a matter of integrity and respect. Even if people think something might be in the public domain, they should always research its history and find out for sure."